Thomas Cook: section 75 claims

Sorry, if you are a Thomas Cook customer-victim. If you have lost out or are due to lose out, you may be able to take advantage of ATOL cover (if a package holiday),  travel insurance or 'charge card' protection where you used a debit card. Where that doesn't help or where it helps but does not cover all your losses and you paid by credit card rather than debit card, section section 75 of the Consumer Credit Act 1974 could come to your aid. For how this works, see http://www.breakinglaw.co.uk/2018/12/for-bbc-radio-5-live-listeners.html

If the credit card provider is liable, this liability would extend to the payment of compensation for  consequential losses which could include  any extra you have to pay out on rebooking another but comparable holiday ; compensation for a spoilt holiday; and out of pocket expenses.

Good luck.

Very Latest Civil Procedural Rules

Two more updates to the Civil Procedure Rules 1998 (applying to England and Wales) have been issued. This will save you having to read them. Switch on your yawnometer if you do. It could peak at 12 million before sending you completely into deep sleep. 

Update 110 amends Practice Direction 51O which is about the electronic working pilot scheme allowing for online commencement of proceedings and lodging documents. The scheme was extended  to the Queen's Bench Division of the High Court on 01 January 2019 and  to out of London Business and Property Court centres on 25 February 2019. As from 07 October 2019 it will apply to proceedings in the Senior Courts Costs Office started on or after that date including requests for detailed assessment and applications issued on or after that date. Lawyers and litigants in person can take advantage. As from 20 January 2020 lawyers must use the scheme. 

Update 111 which came into force last Monday o9 September 2019 (at 11am) will be of interest to litigants in person. Honest. that's because it only relates to you. It concerns a pilot scheme for online civil claims by litigants in person for specified claims for money which do not exceed £10,00 and which, if contested, will almost always be dealt with as 'small claims'. New features have been introduced to the scheme for testing. These include parties being able to complete online the directions questionnaire - this is for contested cases and solicits information to assist the court in deciding when and where to list the final hearing and what procedural directions to give for it. And more cases which are suitable will be referred for mediation under the free small claims mediation scheme. Up until now , they have only been referred where the parties agreed. In future they will be referred where the parties say nothing about wanting mediation: they will be presumed to agree to it. But mediation is still not made compulsory. Silly not to take advantage of it. The scheme is extended to 30 November 2021.

There is another pilot scheme running for lawyers only. It is the swingingly called online civil money claims pilot and it offers a digital service for specified and unspecified claims on an invitation-only basis. The scheme is also extended to  30 November 2021.

Told you!

Divorce Reform Blow

The shutting down of Parliament means that the Divorce, Dissolution and Separation Bill which was to introduce 'no fault' divorce (see http://www.breakinglaw.co.uk/search/label/divorce) has been lost. It had passed two readings and its committee stage. It will have to restart its Parliamentary passage if the Government so decrees. 

Service Charge Challenges: Escape from Landlord's costs

That's enough time off. Put down the ice cream cones and get on with some serious litigation. 

Although some of my best friends are residential landlords (to be honest, I am anti-social), they and their managing agents do know how to load the service charge bill, don't they? Unreasonably incurred bills, sub-standard services and work and services which are outside the scope of what, according to the lease, the tenant should be paying for, can all be challenged. The usual place to mount a challenge is the tribunal: to be precise, the First-Tier Tribunal Property Chamber (Residential Property). I know the name alone is enough to put you off but don't be deterred, my friends. You will find some sexy decisions on challenges that have been made in this blog at http://www.breakinglaw.co.uk/search/label/service%20charges

Now, one of the problems with a challenge is it will involve the landlord in expense. The landlord might well bring in lawyers. And, whether you win or lose, the lease may say that the landlord can add these challenge expenses to a future service charge bill. This would mean you and the other tenants in the block eventually having to contribute towards them. 

There's a possible escape. It is an application (under section 20C of the Landlord and Tenant Act 1985) for an order which prohibits the landlord from adding part if not the whole of its expenses to the service charge. The tribunal will grant such an application if it is satisfied that, in the circumstances it is 'just and equitable' to do so. It would be madness for  the challenger not to apply for such an order. The application should be made on the tribunal form called Leasehold 7.   

What an appeal judgement* has established is that a section 20C order can only be made in favour of the challenger and anyone else who the challenger specifies in the form they seek to benefit from an order. The application form specifically asks for details of other tenants who would wish to avoid being stung for challenge expenses, even though they are not parties to those proceedings. The judgment also makes clear that * there is no time limit for a section 20C application being made: * co-tenants who might be effected can make their own application in the same proceedings or subsequently; and * co-tenants can apply for a section 20C order even though the tenant making the challenge was refused a section 20C order.

Good luck, if you deserve it. And, remember, there's a load on landlord and tenant warfare and a thousand other legal topics in Breaking Law.

*The case is Plantation Wharf Management Ltd v Blain Alden Fairman and others [2019] UKUT 236 (LC)