How To Deal With A Provocative Lawyer

The Solicitors Regulation Authority regulates solicitors in their professional conduct. It acts independently of the Law Society. It can discipline a solicitor who breaks the rules about how they should behave. It has just spoken: in fact, it has just warned. This is because of an increase in the number of complaints it has received about solicitors going over the top in the content of their written communications, not just to the public on social media but to clients and to litigants in person. The Authority has told solicitors that they should take care to ensure that their communications are always professional, lawful and do not cause offence.

I told you so.

I told you so.

I told you so.

Oh shut up, Gold. Well, in my defence I need to say that I did deal with the problem in Breaking Law of litigants in person sometimes being intimidated by communications from  lawyers (who might be solicitors or barristers) for their opponent.   Guidance from their professional bodies tells them to avoid using inflammatory words and phrases which suggest or cause a dispute when there is none or inflame a dispute that already exists. The lawyer should also refrain from expressing a personal opinion about the conduct of the litigant in person.

Should you be on the receiving end of a lawyer's letter which breaks the rules, you may be able to use the situation to your advantage. After all, no lawyer who has communicated in terms which were inappropriate wishes to hear their correspondence read out in court and adversely commented on by the judge - or, even be reported to the Solicitors Regulation Authority, if a solicitor, or the  Bar Standards Board if  a barrister, for disciplinary action against them to be considered. Aggressive correspondence from one side can also be reflected in the order which the court makes on the costs of proceedings at the end of  a case.

You'll find the sort of letter you may send bank to the lawyer in response to their provocative correspondence in Breaking Law. Do remember, though, that it's a bad idea to match offensive words with offensive words. There's nothing more galling to a lawyer who has written a highly emotive letter that to be greeted with a reply which starts "I thank you for your letter of 30 August 2017, the offensive contents of which I note."

Bank Holiday In Wilko

You may have been to the beach today. I have been to Wilko. No sand but still enjoyable. I  wanted to return three solar lights which I had bought for the garden about one month ago for £2.99 each but have since been reduced to £1.85. Two were defective. As one alone would have looked stupid (more stupid than me in my red shorts and green trainers), I wanted to rid myself of all three. No problem. Ten out of ten to Wilko for acknowledging in less time than it takes for a flea to bite your bottom that the three could go back.

But how much would be refunded. £2.99 or £1.85 per light? £1.85 offered. 

"I paid £2.99."

"I'll get the supervisor."

"Yes, they were £2.99. Do you have the receipt?"

"I'm afraid not. I didn't expect I would need it."

"I'm afraid that without the receipt the store policy is that we can only refund the £1.85."

"Can I make a complaint?

"Certainly you can. On line."

"Don't you have a discretion to save the hassle of doing that?"

"Regrettably, I don't have a discretion. You would have to see the manager. He is busy."

"I'll see the manager."

Ten out of ten to the supervisor for courtesy and sticking to store policy despite the fact that with other supervisors at Wilko he is due to be made redundant. If you have a vacancy in your operation then I do commend him to you.

The manager appears within two minutes without any crumbs or the remnants of a cheese and pickle sandwich on his shirt. As courteous as the supervisor. Recites store policy.

" I knew the higher price so that shows it was the displayed price when I was in and that I paid it."

"Don't you have a credit card statement?"

"I have three cards and not sure which one I used, if any. And I might have paid cash. Can't you use your discretion?"

"On this occasion, I will use my discretion and give you the benefit of the doubt. However, if this situation recurs and you do not have a receipt, I would not be prepared to exercise my discretion again."

Eight out of ten to the manager (which is a pretty high score and the best I have given to a store manager in this situation). However, he loses two points because

• he implied there was doubt that I had paid the higher price and
• he prejudged what would happen if his discretion was sought after a future transaction and without regard to the fact that the law does not make it a pre-requisite of an entitlement to a refund or compensation that a receipt is produced.

I have visited the inability to produce a receipt before and deal with this and a myriad of other consumer conundrums in my book Breaking Law. It is only fair and reasonable that  with defective goods being returned, you should be able to demonstrate that you bought them from the shop to which you are returning them and at the price you are claiming you paid. It could be by production of the receipt of a credit card statement or, if neither  is available or of assistance, by a bank statement showing a cash withdrawal out of which you maintain you made the purchase. But suppose you used cash and a bank statement takes matters no further? Then your word can be enough. If the matter went to the county court on the sole issue as to where you bought from and at what price and the judge was satisfied it was more probable than not that you were telling the truth then you would win.

I like Wilko. Perhaps they will stock Breaking Law?

Employment Tribunal Claims: Latest

Employment Tribunal claims in England and Wales inspired by the Supreme Court's decision that the tribunal fees for applications were unlawful were stayed (halted) on 9 August 2017 (see http://www.breakinglaw.co.uk/2017/08/employment-law-claims-stop-press.html).

The stay decision appeared perplexing as I reported. 

The stay has now been lifted and so can be ignored.

MasterCard Claim Dismissal Appeal Attempt

Here's the very latest on the claim by Walter Merricks against MasterCard on behalf of an estimated 46 million consumers - you could be one of them! - which was recently thrown out by the Competition Appeal Tribunal (see http://www.breakinglaw.co.uk/search/label/MasterCard%20claim).

Last Thursday lawyers for Mr Merricks issued an application with the Tribunal for permission to appeal its decision to the Court of Appeal. MasterCard has been given until 8 September 2017 to respond. After that, the permission application may be listed for  hearing. There is some legal uncertainty about whether the legal challenge should go to the Court of Appeal or instead be the subject of judicial review to the Administrative Court. My money - though I am not flush with it and things won't change unless you buy my book - is that this claim is going to go to the Court of Appeal via one of the two possible routes. Mr Merricks and his legal team are confident of ultimate success.

Assault By Sneezing

This is the silly season, alright. And this topic may sound silly. But I'm serious 'cos I am fed up to the teeth with being sneezed at wherever I go. We should all keep our germs to ourselves. And if we don't? Well, let's see.

An assault and battery are known to the civil law as a trespass to the person. If an unprotected sneeze is directed into your face then I regard that as such a trespass. It's probably also the tort of negligence. It could be either or both when, though not directly aimed at you, the sneezer is aware of your presence and the sneeze is emitted so close to you that they should have foreseen that you might catch something from them.

Proving that it was a result of the sneeze that you were struck down could be the obstacle to a successful civil claim for damages. You would have to prove that it was more probable than not that the sneeze was the cause of your illness. Physical closeness, the absence of prior symptoms, the velocity of the sneeze and the stage at which the symptoms began to manifest themselves will be among the major factors for consideration. The further away from you was the sneezer, the weaker your case.

A good sneeze can certainly travel at 60 to 80 miles per hour for up to 20 metres but research published in 2015 suggested that droplets from sneezes - and coughs - may travel 200 times further than had been thought. The incubation period for whatever is to follow the sneeze is around 24 to 48 hours.

Of course, you cannot make a civil claim unless you know the identity of the sneezer. Don't attempt a private arrest. For more on overcoming this obstacle and draft particulars of claim for a sneezing claim for damages, see my book Breaking Law. No warranty is given that you will succeed but let's hope someone does..... soon.

Rights Over Neighbour's Land

The war between adjoining Manchester neighbours is over. It ended in the Court of Appeal last Friday * with a win for Mrs C and a bill for legal costs against Mrs D and her husband for what can be expected to be well over £200,000. And all about whether Mrs C could enter Mrs D's land to inspect the flank wall, built on the boundary line between the two properties, have her meters read and a dispute about whether the gutters on a short extension to Mrs C's property could overhang the air space of Mrs D's property.

Mrs D's deeds gave her the right"with workmen tools and materials" to go next door "for the purpose of effecting... maintenance repair and decoration" to her property. But they did not expressly give her the right to enter next door so that her property could be inspected to see if work needed to be done to it. The Court of Appeal ruled that a right of inspection was required to make effective the right of access to carry out works. Mrs C was not obliged to wait until damp had penetrated her interior walls before seeing whether the flank wall needed repair or to try and inspect from the road. 

What about the meters? They were set into the flank wall and so they could only be read from Mrs D's property. The two detached properties were part of a housing estate. The Court of Appeal said that it could not have been intended that the original purchaser of Mrs D's house and her successors would be unable to read the meters. This would be an absurd situation. A right of access to read the meters was implicit in the deeds. The law will imply into an agreement - whether it relates to rights on acquiring land or other arrangements - a condition which would have been regarded as reasonably necessary or obvious in the light of what was being agreed and the facts the parties were aware of at the time.

Only if 

And for reasons with which I will not bore you, the argument about the intrusion of gutters into Mrs D's airspace went in favour of Mrs C as well.

The principles highlighted by this latest case could help you in any dispute with unreasonable neighbours. The express wording of the title deeds may be crucial but, as you will see, common sense and what should be reasonably implied play an important role.  However, if your deeds do not give you the right to inspect, expressly or impliedly, you may be able to get to inspect by applying to the county court under the Access to Neighbouring Land Act 1992. Easier to have an express or implied right, though.

* The case was Dickinson and another v Cassillas [2017] EWCA Civ 1254

Employment Law Claims Stop Press

This is an update on the ramifications of the Supreme Court's ruling that the widely condemned fees which have been chargeable for employment tribunal claims are unlawful (see http://www.breakinglaw.co.uk/search/label/employment%20tribunal%20fees).

Last Wednesday 9 August 2017 the President of Employment Tribunals Judge Brian Doyle ordered that "all claims or applications brought to the Employment Tribunal in England and Wales upon the (Supreme Court decision)" were to be stayed to await the decisions of the Ministry of Justice and the Courts and Tribunals Service on the implications of the decision. That means that these claims and applications have been halted but not that they have been thrown out.

The order is perplexing and it is to be hoped that its terms and the reasons for it will quickly be clarified. If it is intended to pave the way for reduced fees to be charged in the future for claims that have been made since the Supreme Court ruling without any fee having been paid then it is difficult to see how it will be effective. These claims have been accepted for issue and only new subordinate legislation introducing reduced fees which is retrospective could squeeze money out of claimants. They just don't do subordinate legislation like this.

It is open to any party to one of the recent claims or applications to apply to the regional employment judge for the relevant employment tribunal region for the stay to be lifted. Expect many applications of this nature, particularly because of the novelty of a stay in circumstances such as these. 

What is vital is that claimants who are late in making claims should not tarry on account of this development. The claim should go in without delay to await a decision on whether permission to make it belatedly will be given. The fact that it may be stayed for a while should not influence claimants. 

Will Wife Gain Freedom From Marriage?

Remember the wife married for 37 years and denied a divorce by a Family Court judge and then by the Court of Appeal because they were not satisfied that the conduct of her husband  she complained about amounted to unreasonable behaviour (http://www.breakinglaw.co.uk/search/label/divorce)? Yesterday, she was granted permission by the Supreme Court to appeal to them against the decision. The Justices there who considered her plea for permission were Lady Hale, Lord Wilson and Lord Hughes.

The original judge who heard evidence from both wife and husband looked at the wife's 27 separate allegations which she contended cumulatively amounted to unreasonable behaviour on her husband's part. In order to succeed, she had to show that her husband had acted in such a way that she could not reasonably be expected to live with him. The test was an objective one - what would a reasonable person have reckoned of the husband's conduct - but taking into account the wife's particular sensibilities. It was accepted on her behalf that some of the allegations would not individually seem particularly serious but contended that, taken cumulatively, the effect on the wife of what the husband did was to wear her down.

But the judge decided that the allegations against the "old school" husband who admitted to having a loud voice, were flimsy, at best. He was satisfied that the wife had exaggerated the content and seriousness of the allegations to a significant extent. They were all at most minor altercations, he said, of  a kind to be expected in a marriage. Some are not even that.

It may well be argued in the Supreme Court when the appeal is heard that, given the evidence, the original judge's findings were perverse and that insufficient weight had been given to the sort of person she was and how she would be affected by the husband's conduct.

The law of England and Wales fails to allow for 'no fault' divorce. The party who brings divorce proceedings has to rely on the other party's adultery, unreasonable behaviour or desertion lasting for at least two years. Otherwise, there can be a divorce on the basis that the couple have been apart for two years and they both agree to divorce. Without an agreement, the separation must last for at least five years before it can become the basis for a divorce petition and such a petition is very hard to successfully defend provided the separation has really lasted that long. For civil partnerships, the position is similar.

The wife in this latest case will have to wait for another two and a half years before her separation reaches five years in duration if the Supreme Court does not reverse the decisions of the other courts.

Much more on divorce and civil partnership dissolution in my book, Breaking Law

Employment Tribunal Claims: It may not be too late after all

Have you been prevented or deterred from making an employment tribunal claim because of the prescribed fees you would have to pay over for the privilege? In some cases they came to £390: in others, £1,200. On an appeal to the employment appeal tribunal, they were even higher. The Supreme Court ruled on 26 July 2017 * that these fees were unlawful because they prevented access to justice. The fees are no more: gone, dead. They are no longer being charged and arrangements are being made to refund fees which have been paid over in the past.

There are specific time limits for making an employment tribunal claim and it is generally three months from the end of employment or the happening of the problem. A late claim is sometimes allowed if you can show, depending on the type of claim, that it was not reasonably practicable to make a claim within the three months or in some cases - and this tends it be easier to show- it is just and equitable that you should have more time. If, because of the fees, you did not make a claim or you made one but abandoned it before the second tranche of the relevant fees became payable then you may succeed in an application to be allowed to make a late claim. And if you were put off previously because of the fees but then sought to claim late but were denied, you may be able to successfully appeal, out of time, against the denial. Trying to reopen  a case on then basis of a change in the law has often failed. But here the fact that you were actually or effectively being unlawfully told that you had to shell out money that you could not afford before you could go  ahead or continue would be a powerful argument in favour of you being permitted to put in a late claim. It's a bit like having the doors of the court slammed in your face when you turned up to see that justice was done.

Here's the big hurdle. Despite those hefty fees, it has been possible to apply for them to be remitted, wholly or in part, under the 'help with fees' scheme. If you didn't apply to the tribunal for remission, you will have some explaining to do. Or if you did apply and were turned down, you will have some explaining to do as to why you didn't or couldn't pay the fees it was reckoned you could afford. But if you were turned down and asked to be excused paying the fees under powers to let you off on the ground of exceptional circumstances and that application was unfairly rejected, you may be in with a chance. The power was hardly even exercised - in the 12 months from 1 July 2015 in just 21 cases.

What is essential is that you now act promptly or you won't have a hope in hell of getting in late. If you haven't ever started a claim previously, you will need to notify Acas under the early conciliation process of your intention to do so.

No promises but there may be hope for you. especially if the complaint you have against the employer appears to be a strong one. That hope will be reduced should the employer be able to show that, with the lapse of time, they would now be prejudiced in resisting the case. 

It is not inconceivable that an attempt will be made in the future to reintroduce employment tribunal fees but at lower rates and following better research.

* The case was R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51

Service Charge Windfall

Service charges for houses and flats held under a long lease may be open to attack (see http://www.breakinglaw.co.uk/search/label/service%20charges) There has just been a Court of Appeal ruling* which could amount to a windfall for tenants under such a lease and an enormous pain in the brickwork for landlords.

An 18 month rule applies to service charge demands under the Landlord and Tenant Act 1985. In so far as a service charge demand relates to expenditure incurred more than 18 months previously, you don't have to pay - unless the landlord has told you in writing during those 18 months that the particular expenditure will be incurred and that you will be charged up for it in due course. For some years it has been thought that the 18 month rule did not apply to interim (or on-account) demands for service charge contributions which are provided for by most leases. But the Court of Appeal has just ruled that the relevant law - you will find it in section 20B of the 1985 Act - does in fact apply to interim demands as well as other demands. This means that if by the time a valid interim demand is given to you, any of the costs covered by it were incurred more than 18 months earlier, you may not be liable to contribute towards them. Whether or not the landlord can get round this by sending you a  supplemental demand will depend on what the lease says. In the Court of Appeal case, the landlord was too late to do this.

Before telling your landlord to get on their bike, it would be wise to get some advice form a professional on how you stand, given the wording of your particular lease.

*The case was Skelton and others v DBS Homes (Kings Hill) Ltd [2017] EWCA Civ 1139