Court Finds No Evidence of Discrimination as Women’s State Pension Age Rises!

Women across the nation are likely to be united in their disappointment in the Court of Appeal’s decision to disregard campaigner’s accusations of discrimination after their state pension age was risen to be the same as a man’s.

The case in question which we will be focussing on in this article is *R (on the application of Delve and another) v Secretary of State for Work and Pensions.

What is a state pension?

In brief, the state pension is a regular payment from the government which most people are able to claim when they reach the qualifying age. A person’s state pension age depends on when they were born.

For example, if a person was born in 1977, they will reach state pension age in 2044. But if they were born in 1959 they will reach state pension age in 2025.

You can find out your State Pension age by using the calculator on the GOV.UK website.

Original changes

The Pensions Act 1995 changed the age a woman could begin collecting her state pension from 60 to 65, matching the male age, from April 2010 to 2020.

The Pensions Acts of 2007, 2011 and 2014 then accelerated this change, raising the state pension age for some men and women born in certain years to as high as 68.

What did the claimants take issue with?

The primary issue the claimants (who are two women born in the 1950’s) took was that the changes to the pension age limit discriminates against women, both in terms of age and gender. They believe this to be the case because many women, especially those born in generations such as the 50s, 60s and 70s, were not in an equal economic position to men, and could not get the same types of jobs.

Essentially, their challenge to the legislation was that although one of the aims of PA 1995 was to end the gender based discrimination that had previously allowed women to claim their pension five years earlier than men, this equalisation had come before actual improvements in the economic position of women in their age group.

They also deemed it grossly unjust that women born between 6 April 1950 and 5 October 1954 are able to access their pension between the ages 60 and 66, while women born after 5 October 1954 but before 6 April 1960 must wait until they reach the age of 66 to receive theirs. Their argument is that not enough difference exists between these age groups to make the change in legislation reasonable. They further argued that the affected women were not given enough notice to prepare for up to six years extra without their state pension.

Their plight was backed by a huge amount of people, as an estimated 3.8 million women born in the 1950s have been impacted by the outcome of this case.

How did the Court of Appeal respond?

To put it plainly, the judges unanimously decided the claimants did not face discrimination on the grounds of sex and age when the Department of Work and Pensions (DWP) raised the state pension age.

To add insult to injury for the women affected, the government welcomed this ruling, saying the changes were a “long-overdue move towards gender equality”.

The reasoning behind the ruling was that there is a need to equalise the age of state pensions as men and woman become more parallel according to their career and payment options. They conclude that it is impossible to say that the decision to ‘strike the balance’ where they did was made without ‘reasonable foundation.’

No warning?

A key part of the claimant’s argument was that the changes to the legislation were made swiftly, leaving the women affected little time to prepare for life without access to their pension. This part of the argument was also disregarded as inconclusive.

Reaction

There has clearly been widespread disappointment and concern. Joanne Welch, founder and director of BackTo60 (the campaign group leading the opposition to this legislation), has said she would now consider taking the case to the Supreme Court and will draft her own legislation to bring a women’s Bill of Rights.

What do we think?

Here at Lisa’s Law we understand and appreciate the importance of gender equality. It is difficult not to feel sympathy with the women affected by this legislation; we fully understand their anger and disappointment. It is clearly true that women, on the whole, have historically been paid less than men. While thankfully this is changing, slowly but surely, we do feel that the situation could have been handled differently, or some additional support could have been given to the affected women to help bridge the gap in a more even manner.

It is likely that this case will be reignited in some way in the future, and we will be sure to report about it once more when it does.

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

Or, why not download our free app today? You can launch a new enquiry, scan over documents and much more.

If you have an iPhone, follow this link to download.

If you use an Android phone, follow this link to download.

Find the link here if you need some further instructions on how to use our new app!

lisaslaw@web

See Full Bio

EU Settlement Scheme – Do not fall through the cracks!

The EU settlement scheme is designed to offer EU, non-EU EEA and Swiss citizens and their eligible family members living in the UK before the end of the transition period (during which free movement continues) the opportunity to protect their residence in the UK after the transition period has ended. The deadline to apply is set at 30 June 2021.

For more information on the details of the scheme and how it works, follow this link to our previous article: A Clearance Of The Past? – How Can You Benefit From the EU Settlement Scheme?

Risk of falling behind!

Some people are at risk of being left behind from the scheme for a variety of reasons. Missing the deadline to the EU Settlement Scheme is likely to have very detrimental consequences for some migrants living in the UK. In fact, they would be risking being classed as an illegal migrant, lose the right to live and work in the UK and potentially face detention and removal.

Who is most at risk?

Several factor may result people not successfully applying for the EU Settlement Scheme.

For example:

Being aware! Awareness of EUSS and an understanding of it should not be presumed. Some people may be in the dark about its existence.

Vulnerable people (including those in poverty, victims of modern slavery, of domestic abuse, and homeless people/rough sleepers) will be much less likely to apply due to having their options reduced, not having access to the right documents or a computer or simply not being allowed.

Technical difficulties – some may struggle using the application process for many reasons, including:

○ being unable to read the application (language or literacy barriers)

○ mental and physical health problems and disabilities

○ low digital literacy

No evidence! Many EU citizens may lack the proper evidence to prove their eligibility for EUSS, and the greatest risk will be faced by those who lack evidence of both residence and economic activity. It is more common than people think that people are without the correct documentation, through no fault of their own.

We are here to help!

If you or anyone you know is yet to apply for the EU Settlement Scheme but needs to do so, get in contact with us. We can guide you every step of the way to ensure you and your loved ones do not face prosecution.

Call us on 020 7928 0276 or email info@lisaslaw.co.uk and we will give you the peace of mind and security you deserve.

lisaslaw@web

See Full Bio

High Court: GAGAs can be enforced!

To enter into a commercial lease, one of the requirements of a landlord giving their consent to assign the lease will normally be that the original tenant agrees to enter into an “authorised guarantee agreement”, or (AGA) with the landlord to guarantee the incoming tenant’s liabilities for the lease.

When the incoming tenant fails to comply with the obligations under the lease, the landlord can pursue a claim against the original tenant for losses under the AGA. However, under the Landlord and Tenant (Covenants) Act 1995 (LTA 1995), if the incoming tenant then assigns the lease to someone else, the original tenant will normally be released from the AGA he/she provided to the landlord.

However, in many leases, the landlords also require the original tenants to have guarantors as well. What will happen to these guarantors (original guarantors) if the original tenants subsequently assign the leases and provide AGAs to the landlords? Are these guarantees of AGA (GAGAs) by the original guarantors enforceable under the LTA 1995? A recent case EMI Group v Prudential Assurance has provided answer to this question.

Background of EMI Group v Prudential Assurance

Many people may still remember HMV UK Limited, which was a musical company. In this case, it was the original tenant, with EMI acted as a guarantor. Prudential was the landlord. The lease was later assigned to Forever21 (UK) Limited. In the assignment of lease, HMV entered into an AGA with the landlord.

HMV and Forever21 both became insolvent and were then dissolved. Subsequently, Prudential came after EMI under the GAGA for the rent.

Judgement

The court found that EMI’s GAGA was valid and enforceable.

The Judge made a decision on the basis of the construction of the Lease. The guarantees should be fairly construed in their context. Refer to Tindall Cobham Ltd. v. Adda Hotels [2015] 1 P&CR 5 (CA), Section 25 of the Landlord and Tenant (Covenants) Act 1995 (LTA 1995) itself gave the court freedom to read the offending parts of the lease, and to consider if it was necessary to prevent the removal of the void words from emasculating the remainder of the clause. The court is also entitled to look at the structure of the lease in an objective and common sense way.

In this case, the court rejected the argument that there was an equality of treatment for tenants and guarantors. A GAGA is not subject to the same reasonableness requirement as an AGA. The court stated that the essential part of the GAGA was compliant under s24(2) LTA 1995.

The Court held that the guarantor who gave the GAGA would not be released from liability when the original tenant who gave the AGA entered into liquidation and dissolved. As a result, EMI was not released from the liability by the dissolution of HMV.

Comments

The judgement can be used as a reference for any future guarantors who are pursuing to avoid liability under GAGAs and any future landlords who are pursuing to enforce GAGAs of AGAs.

The judgement clarifies that if a GAGA infringes what was permitted by LTA 1995, it is important for the court to have freedom to construe the agreement in its particular context. It prevents the removal of the void words from emasculating the remainder of the clause.

This judgement has reminded any cautious landlord that they can strengthen their position by incorporating a determinative clause, which states that if a GAGA indicates to go beyond what is permissible under LTA 1995, it is only valid to the extent that it is compliant.

The judgement stated that a provision requiring a GAGA to be given in all circumstances when an AGA is required remains valid. On the other hand, an AGA can only be required when it is reasonable to do so. This again is a reminder to cautious landlords to strengthen their position when drafting a lease.

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

Or, why not download our free app today? You can launch a new enquiry, scan over documents and much more.

If you have an iPhone, follow this link to download.

If you use an Android phone, follow this link to download.

Find the link here if you need some further instructions on how to use our new app!

lisaslaw@web

See Full Bio

Rishi Sunak – What is the economic plan for the UK going forwards?

Currently, you could be forgiven for not being completely up to date with government policies, laws and legislations, as the Coronavirus has meant constant alterations and updates from the government.

Today’s announcement from Chancellor Rishi Sunak is certainly one to pay attention to, however, as it dictates the UK’s plan for dealing with the economics of Coronavirus leading up into the winter months.

The Chancellor has outlined the following three main pillars of the Winter Economy Plan.

Support viable jobs and making sure that employees are working a third of their normal hours, paid as normal by the employer, in order to receive a top up provided from the Government.

Six months of targeted support at businesses that are most at risk – smaller and medium sized businesses to be prioritised, while larger firms allowed to apply if turnover is proven to have fallen.

Extending the existing self-employment grant in its current form.

Job Support Scheme

To be eligible for government support, employees must work a minimum on 33% of their usual hours. For the remaining hours that they have not worked, the Government and the employer will pay a third of those wages each, meaning an employee working 33% of their normal hours will get 77% of their normal wages.

It will be the smaller and medium sized businesses that benefit from this scheme at first, with the larger companies having to prove that they have indeed lost income because of the pandemic.

Employers can use this scheme even if they have not previously used the furlough scheme it replaces. It will run for six months from November.

VAT remains the same within hospitality

VAT is to remain at five percent for hospitality, which is some good news for restaurant owners. This will remain in place until 31.03.21 – originally it was supposed to go back to 20% on 14.01.21.

Concerning the self-employed

An extension to the self-employed grant, known as SEISS, will take place but on the terms of the Job Support Scheme, not the previous furlough scheme. The extension will provide two grants and will last for six months from November 2020 to April 2021. Grants will be paid in two lump sum instalments each covering a three-month period.

The first grant will cover 3 months’ worth of profits from the start of November until the end of January. It will be worth 20% of average monthly profits and will capped at £1,875 in total.

‘Pay as you grow’

A “pay as you grow” scheme was announced for businesses, allowing them to extend their bounce back loans from six to 10 years, reducing their payments. Businesses can also move to interest-only payments or suspend repayments for six months if they are “in real trouble”. Credit ratings will be unaffected.

Our thoughts

It is good to see the government being proactive and planning ahead. We think the Job Support Scheme should be able to help a lot of people, and will beneficial for businesses to retain their staff on shorter hours, rather than having to get rid of people.

It is also right for the self-employed to be given an extension on their support scheme, but we predict many will find the support unsatisfactory if their earnings have been dramatically cut during the pandemic.

Overall, it is at least something to work with for the meantime. We will keep you updated as new changes come to light.

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

Or, why not download our free app today? You can launch a new enquiry, scan over documents and much more.

If you have an iPhone, follow this link to download.

If you use an Android phone, follow this link to download.

Find the link here if you need some further instructions on how to use our new app!

lisaslaw@web

See Full Bio

Court of Appeal: ‘undue harshness’ is indeed capable of occurring quite commonly!

Written by Caryn Toh.

Court of Appeal: ‘undue harshness’ is indeed capable of occurring quite commonly!

On 04^th September 2020, the Court of Appeal tackled the application of the definition of “unduly harsh” in the case HA (Iraq) and RA (Iraq) v SSHD [2020] EWCA Civ 1176.

Deportation

The UK Secretary of State has the power to make an order of deportation against ‘foreign criminals’ under the Immigration Act 1971, section 3(5) and 3(6), unless certain circumstances apply. A foreign criminal is defined as a person who has been convicted of an offence in the UK and sentenced to 12 months imprisonment in the UK.

The foreign criminals who had committed crimes and have been sentenced at least 12 months or more imprisonment will be subject to deportation albeit they will be given rights to appeal against the decision to deport them. The criminality threshold is set out under Paragraph 398 of the Immigration Rules.

The law provides some protection and exceptions to deportation in favour of the person with that predicament. One of the exception that is often relied upon under UK Border Act 2007, section 33 is that the removal of a foreign criminal would either breach their Convention rights under European Convention on Human Rights (“ECHR”). This usually involves the right to family and private life under the Article 8 ECHR or the UK’s obligations under the Refugee Convention.

Under Immigration Act 2014, section 117C(5) laid down considerations to be taken into account in deporting foreign criminals:

(1)The deportation of foreign criminals is in the public interest.

(2)The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3)In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.

(4)Exception 1 applies where—

(a)C has been lawfully resident in the United Kingdom for most of C’s life,

(b)C is socially and culturally integrated in the United Kingdom, and

(c)there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.

(5)Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.

(6)In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7)The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.

S117C(5) describes “unduly harsh” test as applicable when the effect of the deportation would be unduly harsh on the partner and child.

Relevant Case Law

A recent Court of Appeal case of HA (Iraq) and RA (Iraq) v SSHD [2020] EWCA Civ 1176 gives clarity and provide authoritative guidance on the definition of “unduly harsh” effects on a child in deportation cases when foreign criminals are deported.

Backgrounds

For the RA case, RA entered the UK as a minor and claimed asylum. His claim was refused. He subsequently married a British citizen and had a British citizen child. He was granted limited leave to remain before being convicted of possession of a false passport for which he was sentenced to 12 months. The Secretary of State for the Home Department (“SSHD”) made a decision to deport him which he, initially, successfully appealed. That decision was overturned by the Upper Tribunal (“UT”). The UT found that it would not be unduly harsh for his wife or child to relocate with him to Iraq, or for them to remain in the UK without him.

Similarly, the HA case had similar background facts. He was convicted of two immigration related offences: assisting unlawful immigration and possession of an improperly obtained identity card, and one offence of failing to surrender to custody at the appointed time. As a result, HA was sentenced to a period of imprisonment of 16 months. The SSHD made a decision to deport him which, as with RA, he initially successfully appealed. That decision was overturned by the UT. The UT found that although it would be unduly harsh for HA’s partner and children to relocate to Iraq, it would not be unduly harsh for them to remain in the UK without HA.

The Appellants rebutted that the UT’s interpretation of the “unduly harsh” was erroneous and appealed to the Court of Appeal which is subject to this guidance.

Issues 1

The Court of Appeal allowed both appeals. In HA, the court found the following:

UT had asked whether the effect of HA’s deportation on his partner and child would be anything other than what is ordinarily expected by the deportation of a partner or parent. Such approach is wrong given its guidance on the “unduly harsh”.

The alternative argument of ‘very compelling circumstances’ under NIAA 2002, s 117C(6), that in striking the proportionality balance, the UT had failed to take into account that HA’s sentence was 12 months which is the minimum level for him to fulfil the foreign criminal definition

Issues 2

Whereas in RA, it was found that UT had not clearly given the child’s British citizenship the full weight it required and that in various respects its decision was insufficiently reasoned.

Implications

The assessments of the above case laws resulted in the Supreme Court’s ruling in KO (Nigeria) & Others (Appellant) v SSHD [2018] UKSC53 when conducting an assessment of the impact of deportation of a foreign criminal parent on a child in question. Lord Carnwath delivered the lead judgment and suggested that decision-makers should be ‘looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent’. This has led to decision makers imposing the highest threshold. In reality, this appear to be a test which is difficult to meet in all but exceptional cases.

However, the Court of Appeal has now confirmed that while the statutory test has an ‘elevated nature’, the test is not equivalent to ‘very compelling circumstances’ (as set out in NIAA 2002, s 117C(6)—which applies to those offenders who have received sentences of four years or more). Decision-makers must carefully make an ‘informed evaluative assessment’ of the effects of deportation.

Most importantly, the court also noted that there is no reason in principle why cases of undue harshness may not occur quite commonly and that it is not possible to identify a baseline of ‘ordinariness’.

Further, the court also raised a few other significant ancillary points that should not be overlooked. The court has stated the following:

Rehabilitation can be relevant in determining the ‘very compelling circumstances’ test that an individual is no longer a persistent offender depending on the particular facts and circumstances(the previous Court of Appeal authority of Binbuga v Secretary of State for the Home Department[2019] EWCA Civ 551 had cast some doubt on the issue), that factual precedents are of limited use in deportation appeals, and that the British citizenship of any child concerned is an important matter in the best interests assessment.

It was also made clear that physical harm to a child should not be treated as intrinsically more significant than emotional harm, and referenced the lifelong emotional harm that can be caused by terminating the relationship between a child and a close parent.

Opinions:

In relation to the cases involving foreign criminal appealing against a deportation by relying on their relationships with qualifying children or partners, the decision makers should now read KO (Nigeria) v SSHD in conjunction to the guidance provided by the Court of Appeal in this case law. The new judgment indicates that the SSHD should not be applying guidance previously given on the same issue by the Supreme Court in KO (Nigeria) v SSHD which is positive news for appellants. This means that cases with undue harshness can appear more commonly or ordinarily.

If you are served on a notice of deportation, you will be able to challenge your deportation. Please contact Lisas Law Solicitors at 020 7928 0276 or email info@lisaslaw.co.uk for representation and specialist advice. Lisas Law solicitors have a wealth of experience in successfully challenging orders of deportation.

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

Or, why not download our free app today? You can launch a new enquiry, scan over documents and much more.

If you have an iPhone, follow this link to download.

If you use an Android phone, follow this link to download.

Find the link here if you need some further instructions on how to use our new app!

lisaslaw@web

See Full Bio

Wait…have I been offered a Part 36 Offer?

Written by Evveline Loh.

Before we delve into the recent case of Essex County Council v UBB Waste (Essex) Ltd (No. 3) [2020] EWHC 2387 (TCC)….

What is a Part 36 offer?

Parties to a court proceeding will usually try their best to mitigate adverse costs consequences by making a well-thought settlement offer which complies with the Part 36 of the Civil Procedure Rules (“Part 36”). Such offers are commonly made on a ‘without prejudice, save as to costs basis’. Hence, such negotiations are usually privy to parties and the court will only be informed of such Part 36 offers when the matter of costs is being considered. Part 36 offers can be made by either party. Usually if parties agree to settle through a Part 36 offer, the claim is resolved save as to the matter on costs. However, if the offer is rejected, parties proceed to court and there may be adverse cost consequences that might arise from this.

Is your offer a valid Part 36 offer and does principal of estoppel play a role?

In the recent case of Essex v UBB, the high court held that an intended Part 36 offer is viewed as a valid offer. The judge went on to clarified that the principal of estoppel does not apply in the construction of a Part 36 offer. The judge also took into consideration the conduct of the Defendant throughout the proceeding when dealing with the issues in respect of costs and other matters which will not be covered in today’s article. We strongly recommend that you read the full judgment.

Background

Essex County Council (the “Claimant”) was successful at trial and was awarded damages approximately £9 million against UBB Waste (Essex) Limited (the “Defendant”). Following such success, the court proceeded to cost hearing and went on to consider the Part 36 offer made by the Claimant via email on the 7^th March 2019. The offer was sent at 4:54pm and therefore, under the Civil Procedural Rule (“CPR”), it was deemed to have been served on the following day. Although, the offer stated that it was valid “within 21 days of the date of this letter”, the Defendant argued that the Claimant’s offer was invalid because it did not comply with the Part 36 rule. The reason was because it had been deemed served on the 8^th March 2019 (the following day) as it was served passed 4:30pm. Therefore, the Claimant had failed to meet the requisite of 21-day relevant period for the Part 36 offer to be a valid one.

The Claimant argued that the Defendant was estopped from doing so (i.e. prevented from arguing that the Part 36 was invalid) as they have explicitly written to the Defendant requesting the Defendant to notify them in any event of the Part 36 offer was not compliant with Part 36 offer on its receipt.

Decision

Was it a valid Part 36 offer?

Pepperall J gave considerable guidance on construing Part 36 offers. He even revisited a formal case law Dutton v Minards [2015] EWCA Civ 984 that states the basic principal of “validate if possible”. The judge also went on to apply the reasoning in C v D by stating ‘’any ambiguity in an offer purporting to be a Part 36 offer should be construed so far as reasonable possible as complying with Part 36”. This simply means where there is a clear intention to make a Part 36 offer, it should be construed that the Part 36 offer will be a valid one. The judge considered that any non-compliance be considered de minimis (i.e. trifle error).

Principal of Estoppel

Principal of estoppel does not apply in the construction of Part 36. It is the responsibility of the offeror and his lawyer to ensure that the Part 36 offer was complaint with the law. Thus, preventing any reliance on the principal of estoppel.

Comments

This decision serves as a reminder that judges these days are departing from the “technical challenge” nature within the litigation environment. It highly encourages parties to consider settling out of court and would likely to uphold an intended Part 36 offer. We strongly encourage parties to use the designated form N242A to make Part 36 offers. This is to avoid the above scenario having an opponent arguing that the Part 36 offer was invalid.

As you can see from the case above, a valid Part 36 offer provides for a massive difference in costs consequence at the end of the cost hearing. The Claimant was awarded the following: indemnity costs; interest at the maximum 10% over base rate on both damages and costs; and an additional amount of £75,000.

Furthermore, please also bear in mind that the principal of estoppel clearly does not apply within the ambit of the construction of a Part 36 offer no matter how well it was worded. For instance, in this case, the Claimant could not rely on principal of estoppel even though the particular offer had included the following:

‘Should the Defendant require any clarification as to the terms of this Offer, or should the Defendant consider this Offer to be in any way defective or noncompliant with Part 36 of the CPR, please notify us by return and in any event within seven days of the date of this letter. Any failure to do so will be relied on by the Claimant to preclude the Defendant from attempting to avoid the adverse costs consequences of Part 36.’

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

Or, why not download our free app today? You can launch a new enquiry, scan over documents and much more.

If you have an iPhone, follow this link to download.

If you use an Android phone, follow this link to download.

Find the link here if you need some further instructions on how to use our new app!

lisaslaw@web

See Full Bio

Eviction Ban Now Over, Igniting Fresh Worry For Renters – But What Options Are Available?

The ban on evictions, which gave renting tenants some much needed breathing room during the lockdown period, has now been lifted meaning proceedings will be going to court for the first time since March.

In England, Wales and Scotland, landlords must give six months’ notice of eviction, which has increased from two months before COVID-19 hit. Local authorities have said that eviction notices should only be issued unless deemed completely unavoidable.

What is eviction?

Eviction is the legal process a landlord will use when they want a tenant to leave their property.

If the landlord wishes to regain possession of a property either at the end of a fixed-term tenancy agreement, or during a tenancy with no fixed end date, they will usually issue a Section 21 notice. This Section 21 notice is sometimes referred to as a “no-fault eviction”, due to the landlord not having to give a reason for their decision to evict. It is the most common type of eviction.

On the other hand, where a tenant breaks the terms of their rental agreement, by not paying rent, being anti-social or causing damage to the property, the landlord can issue a Section 8 eviction notice. Landlords must specify which tenancy terms have been broken. If the tenants do not leave by the specified date, the landlord can apply to the court for a possession order.

A backlog of cases

Over the six month period covered by the ban a large backlog of cases has built up, which has been expected. The National Residential Landlord Association (NRLA) has stated private landlords would “work with their tenants to sustain tenancies wherever possible”, but ultimately defended the restart of evictions.

In terms of the courts, priority will be given to “serious cases”. This may involve tenants committing anti-social behaviour or domestic abuse within the properties.

The six month rule

As mentioned above, renters will have six months to leave the property after their landlord has issued a notice of eviction – as long as the notice was served after August 29.

There are some exceptions to this rule, where renters could face eviction within four weeks or less. Such issues such as fraudulent behaviour, rent arears of up to six months and violent conduct are all examples of such exceptions.

If the landlord issued the eviction notice before 26 March 2020 the time frame shortens to two months for the tenants to leave, and it is three months if the eviction notice was served between 26 March 2020 and 28 August 2020.

Advice to tenants

Firstly, if you are worried about eviction and want advice our team of lawyers are here to help, likewise if you are a landlord and want to know what rights you have in reclaiming your property.

From the tenants’ point of view, it is worth considering the following options:

You are entitled to your notice period – Landlords are obliged to give tenants notice before they can apply to court for a possession order. In most cases, this notice must now be at least six months in England, Wales and Scotland.

Get legal advice before giving up your home voluntarily even if eviction seems unavoidable. It is illegal for your landlord to:
harass you
lock you out of your home, even temporarily
make you leave without notice or a court order.

If you are struggling to pay rent, you should speak to your landlord and organise a repayment plan to pay off arrears if possible.

Gather evidence – it is good to have receipts of rent paid and documented communications with your landlord, such as emails, voice mails or text messages.

If you are on Universal Credit and unable to pay rent you may be able to get a discretionary housing payment from your local council.

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

Or, why not download our free app today? You can launch a new enquiry, scan over documents and much more.

If you have an iPhone, follow this link to download.

If you use an Android phone, follow this link to download.

Find the link here if you need some further instructions on how to use our new app!

lisaslaw@web

See Full Bio

Why should you consider making an application for pre-action disclosure?

Receipt of documents before legal action can be vital to understand the strength of a prospective claimant’s position, how to ultimately plead its case and to explore the likelihood of whether a settlement can be reached to ultimately reduce the litigation costs. It is also intended to assist prospective claimants who need the disclosure to determine whether to litigate at all.

Although a request could be made to the relevant party for the documents in question, it may be unlikely to result in voluntary surrender of the material sought, including for example because of confidentiality obligations owed or an unwillingness to incur costs associated with such disclosure. It is also of course a certain degree of an invasion of privacy.

Disclosure generally takes place after proceedings have commenced and the parties have filed directions questionnaires, this usually occurs during the case management stage. However, in some instances you may consider it necessary to obtain disclosure prior to the commencement of proceedings, eg, where:

there is a risk that a prospective defendant will destroy documents or materials before proceedings start

documents are required under pre-action protocols

a third party has documents which may be relevant to the dispute (a principle enunciated from the well-known case of Norwich Pharmacal Co. v Commissioners of Customs and Excise, generally known as Norwich Pharmacal orders)

you suspect fraudulent activity. Note: the court will only order pre-action disclosure in ‘exceptional’ cases where allegations of fraud are involved

Key authorities including Black v Sumitomo and Bermuda International, the court takes a two-stage approach when deciding whether to make such an order under Civil Procedure Rule 31.16(3):

(1) does it have jurisdiction i.e. the four conditions under CPR 31.16(3)(a), CPR 31.16(3)(b), CPR 31.16(3)(c) and CPR 31.16(3)(d) have been met and, if so;

(2) should it exercise its discretion to make the order.

The courts’ power to order disclosure before proceedings have started arises out of Section 33(2) of the Senior Courts Act 1981 or Section 52 of the County Courts Act 1984.

Court’s jurisdiction

The conditions and relevant tests to be met are:

CPR 31.16(3)(a) & (b) — The relevant test is that it is likely that the applicant and respondent will be parties to the proceedings if proceedings are issued. An applicant must also demonstrate that it has an arguable case.

Where there is a possible limitation issue with a prospective claim, there is no particular rule of law or practice as to how a court should deal with the question of limitation in an application for pre-action disclosure (Loches Capital Ltd v Goldman Sachs at para [88]). The court adopted the approach that where a claim is time-barred with no prospect of overcoming the limitation issue, this would be ‘a powerful, if not conclusive reason’ not to order pre-action disclosure. Where a potential limitation argument is not so strong that it is bound to succeed, it is unlikely to be a basis for the court to refuse an application for pre-action disclosure.

CPR 31.16(3)(c) provides that an order for pre-action disclosure may only be made where, if proceedings had started, the documents or classes of documents sought from the respondent would fall within the requirements of standard disclosure under CPR 31.6. It limits the scope of documents covered by pre-action disclosure to those documents which fall within the standard disclosure obligations of CPR 31.6. The court has excluded background documents or ‘train of enquiry’ documents from the scope of this section.

CPR 31.16(3)(d) provides that an order for pre-action disclosure may only be made where disclosure before proceedings is desirable to (i) dispose fairly of the anticipated proceedings, (ii) assist the dispute to be resolved without proceedings, or (iii) save costs.

There are several factors to consider, namely the extent of the documents sought; the necessity of the disclosure to establish whether the applicant has a claim; whether the possible claims are speculative in nature, whether the applicant already possesses sufficient material to strategize and plead a claim; whether the early disclosure will result in significant saving in costs; whether the disclosure sought would be extraordinarily burdensome; and whether the parties are engaged in such hostility that it is unlikely any disclosure would assist the dispute from being resolved without proceedings; the extent to which information is known to only one of the parties ; and whether the disclosure of quantum documents are desirable to assist the dispute to be resolved without proceedings and to save costs.

Court’s discretion

Even if the jurisdictional threshold is met, pre-action disclosure will only be granted if the court then exercises its discretion in favour of the applicant. In exercising its discretion, the court will look at the facts of each case.

Several factors the court may take into account when exercising its discretion include the nature of the loss complained of; the clarity of the issues raised; the nature of the documents requested; the nature of the applicable pre-action protocol and the stage reached in that protocol process; the availability of the documents from other sources and the opportunity for making the claim without the disclosure being given pre-action; what special need for urgency there is in obtaining the documents at this pre-action stage.

Practical tip:

Pre-action disclosure is the exception and it is generally not easy to obtain an order. Applicant should produce a narrow and tightly drawn list of documents. The more determinative the documents are of the dispute in issues, the easier it will be for the court to grant the request.

Parties should try to agree before the hearing that some of the conditions are satisfied, this will save costs as it will limit the contentious issues before the court.

Lastly, consider whether you should redact any commercially sensitive information when responding to an application or complying with an order.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Or, use the contact form on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/contact/

For more updates, follow us on our social media platforms! You can find them all on our Linktree right here.

lisaslaw@web

See Full Bio

Sky-high divorce rates part of the Coronavirus impact

The coronavirus pandemic has been difficult for everyone, but for marriages that were already in rough water the lockdown and restrictions brought in by the disease have been the final straw for many couples. Being on top of each other for a long period of time may have magnified issues that had been there all along, with increased money worries and stress, it is a recipe for marital breakdown.

Now that lockdown has been eased for a while, people are moving forwards with their divorce plans, looking into options, and seeking legal advice. Citizens Advice have revealed that divorce guidance searches online have steadily risen since April after a drop in visits when lockdown started, and are up by 25% compared to this time last year.

In response to this, we have prepared this article to give some useful information to anyone thinking about or going through a divorce at the moment.

Consider the timing

Clearly there are situations in which waiting is not an option. For example if there is any domestic violence going on in the relationship, or one partner is acting in a controlling way, the best thing to do is seek help immediately and get the divorce done with the help of legal advisors.

Usually it is common for couples to wait for certain events to pass before starting divorce proceedings, such as Christmas, birthdays or other big events. This is more the case for couples who have children, to avoid upsetting the little ones, but even if that is not the case some people will choose to wait to avoid disrupting other family members such as parents.

Ultimately, it is up to the couple to decide what is best but in our opinion it is not advisable to wait too long, as an unhappy marriage is not good for the couple’s mental health or that of the people closest to them. This is especially true if the lockdown period was tough, the best thing to do may be to move on and put the difficult period behind you.

Before you begin proceedings…

Some helpful things to help prepare yourself are as followed:

If you have children, discuss with your partner how and when you will tell them about your divorce. Different aged children will react differently but it is best if both parents are present at the time and the information is presented gently but clearly. It is important not to try to win favour of the children, but rather be balanced and calm without trying to blame the separation on one another. This will only cause confusion.

Talk to your support network, there is no point in suffering in silence. Speak with friends and family about what you are going through, or if you know someone who has been through a divorce themselves, ask for any suggestions they may have to make things easier for yourself and your family. There may be something you have overlooked, or something they wish they had done but did not which they can let you in on.

Have a look at properties that could be suitable to move into after the divorce. It is best to be prepared and getting an early idea of what is available is a smart move.

Start thinking about your own financial position and weigh up your options in terms of how you might split assets with your partner.

Avoid the courts if possible

Here at Lisa’s Law we always want what is best for our clients, and we believe that going to court can lead some unnecessary costs and stress for couples and their families. It is important to remember you will not get financial aid for legal services unless you are divorcing an abusive partner, in the eyes of the law. There are some things that can be agreed on to avoid going to court.

Children:

You and your ex-partner can usually avoid going to court hearings if you agree on:

where the children will live

how much time they will spend with each parent

how you will financially support your children

You can use a solicitor if you want to make your agreement legally binding and can agree on child maintenance at the same time or separately.

Here at Lisa’s Law, we have a vast amount of experience in this area and our team of lawyers will give you thorough guidance towards a desirable solution.

Splitting assets

We cover various options regarding the splitting of assets in our article Splitting assets in a divorce – How does it work?, but here are some key points to remember:

Here are some of the main factors that will be taken into account by us as your solicitors, and by the Court:

When the asset was purchased or accumulated.

Whether the asset considered has been treated by the couple as part of their matrimonial assets

Income and earning capacity, property and other financial resources that each spouse has or is likely to have in the near future.

The financial needs and responsibilities which each spouse has or is likely to have in the foreseeable future.

The ages of each spouse.

The duration of the marriage.

Any physical or mental disability of either spouse.

Roles in the marriage or civil partnership, for example if one person was the main earner while the other acted as primary care giver.

Splitting property

Firstly, you can decide to simply sell the home and both of you move out. The money that both get from this could be put towards buying yourselves a new home each, if you can afford to do this. This is usually the easiest option.

Another simple option, if it can be agreed upon, is one person buying the other out of the property. This can be a good route if one person really wants to stay in the same location, while the other wants to seek pastures new.

Thirdly, it is possible transfer part of the value of the property from one partner to the other as part of the financial settlement. The partner who gave up a share of their ownership rights would keep a stake or ‘interest’ in the home, receiving a percentage of its value when the property is sold.

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

Or, why not download our free app today? You can launch a new enquiry, scan over documents and much more.

If you have an iPhone, follow this link to download.

If you use an Android phone, follow this link to download.

Find the link here if you need some further instructions on how to use our new app!

lisaslaw@web

See Full Bio

COVID Secure Search Order Issued For Disgruntled Gas Company

Covid 19 has disrupted people’s life to a great extent. The government has issued strict social distancing guidance and threatens that any one in breach of it will face serious penalties. Court rooms and legal proceedings are no exception to this.

In such context, many hearings have become virtual. The Ministry of Justice issued its guidance Working safely during COVID-19: enforcement agents (bailiffs) on 21^st August 2020 to instruct how bailiffs should work safely when enforcing judgments. Then how should interim orders like search orders be carried out without breaching the social distance rules? This issue has recently been put forward to High Court judge Mr Justice Fordham.

The case, Calor Gas Ltd v Chorley Bottle Gas Ltd and others [2020] EWHC 2426 (QB), boils down to the fact that Calor Gas suspected Chorley Bottle Gas Ltd of refilling containers incorrectly. They believed Chorley Bottle Gas were simply filling up gas canisters in a back garden without taking proper steps to ensure safety or the level of quality that they had expected and been promised. As part of their business agreement, Chorley Bottle Gas are obliged to collect empty gas containers from Calor Gas, refill them safely and in line with official guidelines, then return them.

To further be in line with COVID regulations the hearing itself was conducted via a BT conference call, something that has been common for the majority of 2020.

What is a search order?

A search order is a form of court order that requires a respondent to allow the applicant’s solicitors or representatives to enter the respondent’s premises and to search for and remove all items included within the order.

Generally, the purpose of a search order is to collect and preserve evidence or property which is (or may be) the subject of an action, or point of interest within an on-going case.

How was this search order made COVID secure?

Firstly, due to the coronavirus pandemic and the complications that come with it, Calor Gas sought a restricted search order that was limited to the business section of the property (the living quarters were off limits) and the exterior areas of the premises. These are the areas in which the alleged breaches were suspected to be carried out.

Mr Justice Fordham laid out the following rules which, only if they were followed directly, would allow the search order to go ahead:

all members of the search party to have a temperature test before entering the premises

nobody present inside the premises can be going through the shielding process

social distancing measures must be taken (not being within 1m of each other where possible)

hand sanitiser, gloves and masks must be worn by all who enter the premises

What do we think?

We agree that safety must always be a top priority and that during the coronavirus pandemic the appropriate precautions must be taken during a search order, or any other type of legal proceeding. We approve of the choice to hold the hearing via a BT conference call and respect the judges’ decision to have the search order only take place within the parameters of strict rules and guidelines.

Search orders can be an integral part of a case, so we appreciate the need for them in certain situations, but this does not mean there are not risks associated with them. Our advice would be to anyone who has a search order launched against them is to seek out legal advice to ensure appropriate measures will be taken. If necessary, the party concerned can apply for the search order to be varied or with certain conditions attached, especially with COVID-19 still very much a factor in life.

That being said, it is not realistic to completely rely on the pandemic as a deterrent for a search order to take place. These orders are serious and must be treated as such – which further heightens the need for legal advice if one is to take place.

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

Or, why not download our free app today? You can launch a new enquiry, scan over documents and much more.

If you have an iPhone, follow this link to download.

If you use an Android phone, follow this link to download.

Find the link here if you need some further instructions on how to use our new app!

lisaslaw@web

See Full Bio

Have a question? Our friendly and experienced team are here to help.

Subscribe to our newsletter

We post weekly articles covering a variety of topics, including immigration, property, and more, so subscribe to our newsletter for the latest updates.