eBulletin - Legal Update
November 2014

Article 1 - RTA Protocol Update - David Lang

The clampdown on costs associated with personal injury claims arising from road traffic accidents continued as of 1st October 2014 with amendments to the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the RTA Protocol). These latest amendments limit the amount of costs claimants can recover for medical evidence in soft tissue injury cases. The limitation, as outlined at paragraph 4.7, will only apply to cases where the Claim Notification Form is submitted on, or after 1st October 2014. This article is designed to provide a brief summary of the changes.

CPR Part 45.19 stipulates what disbursements are recoverable under the fixed costs of the RTA Protocol. Paragraph 2A stipulates that in a soft tissue injury claim to which the RTA Protocol applies, the only sums (exclusive of VAT) that are recoverable in respect of the cost of obtaining a fixed cost medical report or medical records are as follows—

  1. obtaining the first report from any expert permitted under 1.1(12) of the RTA Protocol: £180;
  2. obtaining a further report where justified from one of the following disciplines—
    1. Consultant Orthopaedic Surgeon (inclusive of a review of medical records where applicable): £420;
    2. Consultant in Accident and Emergency Medicine: £360;
    3. General Practitioner registered with the General Medical Council: £180; or
    4. Physiotherapist registered with the Health and Care Professions Council: £180;
  3. obtaining medical records: no more than £30 plus the direct cost from the holder of the records, and limited to £80 in total for each set of records required. Where relevant records are required from more than one holder of records, the fixed fee applies to each set of records required;
  4. addendum report on medical records (except by Consultant Orthopaedic Surgeon): £50; and
  5. answer to questions under Part 35: £80

The newly inserted paragraph 16A of the RTA Protocol defines soft tissue injury claim as meaning a claim brought by an occupant of a motor vehicle where the significant physical injury caused is a soft tissue injury and includes claims where there is a minor psychological injury secondary in significance to the physical injury.

Both paragraph 2B of CPR Part 45.19 and paragraph 10A of the RTA Protocol seek to impose independence on the medical examiner who is providing the report through highlighting that only in exceptional circumstances can the costs of a report be claimed from someone providing, or proposing to provide the treatment, or someone associated with them (see paragraph 1A of the RTA Protocol for the definition of associate).

Paragraph 2C of Part 45.19 outlines that the cost of expert reports not stipulated in paragraph 2A are not fixed, however, the CPR is clear that the cost of obtaining that report will have to be justified.

In addition to the amendments highlighted above, practitioners should also be aware of the consequences these amendments have had on Part 36 Offers, and consideration will need to be had to the updates to CPR Part 36.

Clearly these new costs rules seek to continue to reduce the costs on defendant insurance companies in relatively straightforward cases and ensure there is independence in the medical evidence obtained. There will however be a school of thought that these amendments do not go far enough. The current application is limited to soft tissue injury claims. Claims where there are other minor injuries will not fall under the scope of this section which given the low value and lack of complexity in these claims may be seen as somewhat perverse.

Article 2 - One Life, Two Courts - Amy Beddis

Domestic violence has featured heavily in the media throughout 2014. With the changes in access to legal aid and the Government’s consultation: Strengthening the Law on Domestic Abuse, surely now is the time for change.

As a criminal and family practitioner, I often represent men and women who have suffered the effects of a violent or controlling relationship. Often, their home life is caught between the criminal and family court jurisdiction. However, the way in which each court manages cases involving domestic abuse can be quite different.

Take for example, cross-examination. In criminal cases if a Defendant charged with a related offence is unrepresented, the court has a duty to consider s36 of the Youth Justice and Criminal Evidence Act 1999 as to whether the Defendant should be entitled to cross-examine the aggrieved themselves or whether under s38 the court should appoint a representative to question the aggrieved on their behalf. In all of the cases I have been involved with the court has used those powers to appoint a representative to protect the victim from being questioned by the accused.

In family cases, even where the perpetrator has been convicted of domestic related incidents there is limited protection from being cross-examined by their ex-partner. For example, the Judge in most cases will ensure that questioning does not cross any ethical boundaries but is this enough protection?

Special measures are considered in all criminal cases relating to domestic violence to ensure that victims and witnesses tell the court what has happened to them without fear or intimidation. This includes using live link or screens in court. In family cases no such case management is prioritised and special measures although available need to be specifically requested.

These two basic case management points must be so confusing to those whose lives are being played out in the courts.

When I speak with women and men who have been faced with court proceedings where they have been abused often mentally and physically by their partners they struggle with the process. In the majority of cases I have been involved in, both family and crime, the victim is completely trapped. Trapped by their ex-partner, trapped within a “system” and trapped in themselves having withdrawn from family and friends. So how do we learn from this?

The criminal justice system should listen to victims of domestic abuse and the court process should join up to provide a more consistent approach to these cases. Is court alone with no support the right way to handle cases? And where we have repeat offending, is the system working? Should there be one integrated court managing cases involving domestic violence as in other countries?

The changes to access to legal aid has exacerbated the difficulties that victims face in respect of feeling supported, represented and not marginalised. To subject people to a two tier process by way of proving you have been abused to even obtain legal support cannot be the way forward. On 19 September 2014 the Rights of Women were successful in their application for permission to judicially review regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012, made under s 12 of LASPO. The matter should be heard before Christmas, the outcome will be closely monitored.

Article 3 - “Unlock the equity in your property” scams Final word to the Supreme Court - Derek Marshall

Two years ago we published an article on this subject. Now the Supreme Court has given its definitive word on the law, in North East Property Buyers Litigation [2014] UKSC 52 (28th October 2014)

A group of householders in Hampshire and in the Newcastle area signed up for a scheme whereby they sold their homes to an investment company, which promised an income and a life interest in their own home in return for the investment of the sale proceeds with that company. Of course, the scheme only works on a rising market, especially when the investment company promptly mortgages the property to a lending institution and (in the case of the Hampshire scheme) fraudulently pretends to the lender that this was a normal domestic sale to one of the members of the company. When the instalments of mortgage go unpaid and possession proceedings follow, the lenders and the householders find out about each other for the first time. Since both are innocent victims of the scheme, who should lose out?

In the Hampshire cases we pleaded a series of defences, including fraud and overriding equitable interests but the cases were all stayed by consent whilst the High Court in Newcastle struggled with similar issues in the North East Property Buyers Litigation. There had been conflicting decisions of County Courts in similar situations, including Redstone Mortgages v Welch [2009] EGLR 71 which favoured the interest of the householders over the innocent mortgagees and Abbey National v Cann [1991] 1 AC 56 in which the interest of the mortgagees prevailed. All of the cases in Newcastle were lost at first instance and in the Court of Appeal.

The Supreme Court had to struggle with the same issues of fairness and the need for clarity in the law that everyone else did. Their Lordships agreed with the Court of Appeal that there was no moment in time between the leaseback contract and the execution of the mortgages in which an equitable interest could arise, and in any event the rights granted to the householders by the investment company were personal at best and could not override the interests of the mortgagees. Whilst on the face of it, the promises by the investment company to grant a continuing right of occupation bore the hallmarks of an equitable estoppel, the question was whether this could be an interest in land before the promisor became the legal owner. This in turn fed into the question of whether the completion could be divided from the grant of the mortgage, or whether there was one indivisible transaction.

Lords Collins and Sumption were clear in their conclusion that the completion and mortgage were an indivisible transaction, and Lady Hale and Lords Wilson and Reed thought that even if there were equitable rights in favour of the householder at the point of completion, the mortgage would still take priority over them. The argument that the combined effect of sections 29, 116 and 132 of the Land Registration Act 2002 was to create a proprietary interest in favour of the householder was rejected. Although the Court was unanimously in favour of the lenders however, there was a sharp division as to their reasoning. Lady Hale in particular disagreed with Lord Collins about the “indivisible transaction”. She pointed out that just as in Williams & Glyn’s Bank v Boland [1981] AC 487, the householder was in actual occupation at the time of the transaction(s) so why should there not be an overriding interest as was upheld in that case? Moreover, the lender is not a party to the sale transaction so why should the two transactions be considered as one? In the end, she managed to square this circle by concluding that a purchaser cannot create any proprietary interest in land before he actually completes on it, but she confessed to some “uneasiness” about that conclusion, with which I entirely agree. The argument we ran in the Hampshire cases was essentially to say that to look at the problem from the point of view of the lender was to put your eye to the wrong end of the telescope: the key question was to ask “how can a borrower create more of a right that he already has for himself?”

For policy reasons no doubt, their lordships disagreed. As Lord Collins said in the leading judgment, it would be impossible not to feel sympathy for the householders, many of whom had been victims of fraud by the investors and unscrupulous behaviour by solicitors. However the Court was also concerned that there are more than 23 million registered titles in England and Wales and the Land Registry may handle up to 75,000 house sales each month, most of which are financed by secured loans. The implications for the housing and lending market if the householders had succeeded could have been massively serious.

The problems that had arisen for the householders would of course have been avoided if the contracts for sale had given details of the precise contractual arrangements that were to operate in relation to their occupation after completion. In the Hampshire cases, this did not happen due to the fraud of the investment company but it was always going to be difficult to visit this upon the mortgagees, who were innocent of any wrongdoing.

The businessmen behind the investment company in the Hampshire cases received long sentences of imprisonment for fraud but the real mischief in these cases was the risky nature of sale and leaseback schemes. The Financial Services Authority recommended that this should become a Regulated Activity under Section 19 of the Financial Services and Markets Act 2000, because the schemes were almost always unaffordable or unsuitable, and this has now been brought into effect, with the result that the sale and leaseback market is now almost non-existent. The problem for householders involved in these historic schemes remains.

Article 4 - Anti Social Behaviour – New Absolute Ground for Possession - Amy Beddis

Whether you are a landlord, a neighbour, or a tenant, the way in which the law deals with anti-social behaviour is changing. So what is anti-social behaviour? The new Anti-social Behaviour, Crime and Policing Act 2014- (“the Act”) defines it as “conduct that has caused, or is likely to cause, harassment, alarm or distress to any person, conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or conduct capable of causing housing-related nuisance or annoyance to any person.”

If you have represented landlords in the past you will know that it can be difficult to evict a tenant based on anti-social behaviour alone, as it has been a discretionary ground for possession. I have been in court on several occasions when breaches of anti-social behaviour injunctions have taken place (the landlord having used this mechanism as a last resort!), only to find the court giving the tenant one last chance to improve, before possession stage.

Anyone who has represented tenants will know that the root cause of the alleged anti-social behaviour is never as simple as that person simply wanting to cause an annoyance. On many occasions I have represented people with underlying, often untreated mental health difficulties, learning difficulties, or drug and alcohol addictions.

If you are a neighbour you will have often felt let down by the courts or the landlord, your perception is that you see someone “getting away” with their behaviour, which is disturbing your quality of life.

The Act introduces a new absolute ground for possession of secure and assured tenancies where anti-social behaviour or criminality has already been proven by another court, which came into force on the 20th October 2014.

The tenant, a member of the tenant’s household, or a person visiting the property must meet one of the following conditions:-

    • convicted of a serious offence (specified in Schedule 2A to the Housing Act 1985);
    • found by a court to have breached a civil injunction;
    • convicted for breaching a criminal behaviour order (CBO);
    • convicted for breaching a noise abatement notice; or
    • the tenant’s property has been closed for more than 48 hours under a closure order for anti-social behaviour.

The offence or breach needs to have occurred in the locality of the property or affected a person with a right to live in the locality or affected the landlord or his or her staff/ contractors. Secure tenants of local housing authorities will have a statutory right to request a review of the landlord’s decision to seek possession. Private registered providers are encouraged to adopt a similar practice.

If the above test is met, the court must grant a possession order (subject to any available human rights defence raised by the tenant, including proportionality) where the correct procedure has been followed.

Unlike the existing discretionary grounds for possession, the landlord will not be required to prove to the court that it is reasonable to grant possession. The Government state that this new provision will offer better protection and faster relief for victims and witnesses of anti- social behaviour, save landlords costs, and free up court resources and time.

At present due to the discretion of possession hearings on anti-social behaviour grounds there is the opportunity for the court to hear evidence as to whether it is reasonable to make an order in the circumstances. This provides the tenant an opportunity to present any medical or other evidence in support of their case and persuade the court to use its discretion. Moving forward this situation will only apply to proceedings brought under the existing provisions. The new provisions do not provide the Court with the same discretion.

This new provision means that a court will not be able to postpone possession to a date later than 14 days after the making of the order except in exceptional circumstances, and will not be able to postpone for later than six weeks in any event.

Therefore, whether you are a landlord, a neighbour or a tenant only time will tell how the courts interpret this new provision within the Act and how much difference it will make in practice.

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