Private Client Titles ~ Summer 2008


Argument that Balloon is an Aircraft Not Hot Air
A recent case found the court considering whether a hot-air balloon, which carried passengers on pleasure trips, was an aircraft under the law. The case involved a man who was injured in 2003 when the balloon he was travelling in landed heavily.
In 2006, he commenced proceedings against the balloon’s operator and one of the issues to be considered was whether the balloon could be categorised as an aircraft. If it could, the laws relating to carriage by air would apply. In the court’s view a hot-air balloon was an aircraft for the purpose of the claim. Unfortunately for the claimant in this case, this meant that he was outside the two-year time limit for bringing such claims.
The case illustrates the importance of taking advice promptly if you suffer an injury. Delay can lead to a claim becoming ‘out of time’ for arguing through the courts.
Partner Note
Laroche v Spirit of Adventure (UK) Ltd. (in liquidation) [2008] EWHC 788 (QB); [2008] WLR (D) 118. See
Bank Charges Case – Was it Really a Defeat for the Banks?
The Court’s decision in the recent case brought against the clearing banks, in which it was argued that their system of charging customers was subject to the terms of the Unfair Terms in Consumer Contracts Regulations 1999 (the Regulations), has been widely touted as a massive victory for the customers of banks. However, a closer examination of the ruling suggests it is not quite such a one-sided victory as might be thought. The case was brought by disgruntled customers who argued that unauthorised overdraft and similar charges constitute penalties, rather than commercial restitution for the increased costs incurred by the banks.
The case took place in the context of an investigation by the Office of Fair Trading (OFT) into the charging policies of banks.
The banks succeeded in their argument that their terms are in ‘plain, intelligible language’ (although possibly in very small print). When this is the case, the Regulations do not allow an assessment of the fairness of the ‘price or remuneration…’. The argument here is that the Regulations should not apply to a contract the terms of which are clear and unequivocal and agreed to by both sides. The banks argued that since the charges which are the subject of the dispute constitute the price for the banking services offered, they are exempt from assessment. However, the court could not accept that point. The additional charges were not for the services provided (i.e. operating the bank account in the normal way), but for the failure of the customer to adhere to the contract. Accordingly, in the view of the Court, an assessment of their fairness should still apply because the charges being looked at by the OFT fall outside those normally received by the banks in exchange for the services they supply.
The banks have therefore failed to halt the OFT enquiry into their charges to retail customers. An appeal against this decision is likely to be heard this autumn. Meanwhile, the OFT’s investigation will continue.
However, in one regard, the banks have won a significant victory in that it is accepted that their contractual terms are clear and enforceable. On 7 July another hearing will decide whether other terms imposed on customers by the banks, that were not dealt with in the previous judgment, constitute penalties. English law does not allow the enforcement of penalties for breaches of contract, limiting the amount payable for breaches of contract to the sum necessary to put the offended party in the position they would have been in had the breach not occurred.
Partner Note
The Office of Fair Trading v Abbey National plc and Others [2008] EWHC. See
Boy Injured on Bouncy Castle to Receive Sizeable Settlement
A boy who suffered brain damage after he was kicked in the head while playing on a bouncy castle has been awarded compensation that could amount to £1 million, a ruling that will cause parents to stop and think.
Sam Harris, who was 11 years old at the time of the accident, had been playing on a bouncy castle set up in a field behind the home of Catherine and Timothy Perry. The Perrys had hired the bouncy castle for their triplets' birthday party. Sam, who was passing with his father, asked Catherine Perry if he could join in.
Whilst on the bouncy castle Sam was kicked in the head by a 15-year-old boy doing a somersault. Sam's skull was fractured and he suffered a very serious and traumatic brain injury. As a result, he now has severe behavioural problems and requires round the clock care.
In court the judge decided that the accident had been caused because the Perrys had not supervised properly the children playing on the bouncy castle. There should have been someone there to prevent the older boy from using it at the same time as the younger children and to ensure that dangerous play was prevented. The hire contract for the castle also stipulated that it should be under constant supervision whilst in use. At the time of the accident, however, Mrs Perry had her back turned away from the castle while attending to another child.
The judge dismissed the defence's claim that Sam's father should have provided better supervision.
The total compensation payable could be as much as £1 million.
The Perrys have been given permission to appeal against the decision although the judge rated their chances of succeeding as ‘poor’.
Partner Note
Variously reported – see
Buying a House and Consumer Protection
With the advent of Home Information Packs (HIPs), the appointment of an Ombudsman for Estate Agents (OEA), the laying down in statute of the duties of estate agents and the recent passing of the Consumers, Estate Agents and Redress Act 2007 (CEARA), a property purchaser might reasonably conclude that their interests are strongly protected under the law. This view is likely to be bolstered by an awareness of the existence of the National Association of Estate Agents’ (NAEA) own disciplinary and redress scheme. However, the assumption that a buyer’s interests are well protected is not as well founded as you might think.
The main function of the HIP is to collect information (searches, title details and so on) about the property and its energy efficiency. It is supplied by a provider independent of the owner of the property. The rights of the property purchaser are primarily protected by making the HIP provider carry insurance to meet claims for losses suffered by buyers as a result of incorrect HIP content.
The estate agent’s main duty is to the vendor of the property, so the regulations under which they operate relate mainly to their relationship with the vendor. They are bound not to discriminate against purchasers who do not wish to buy other services they offer and to declare a personal interest to any buyer. It is important to note that even when the sales particulars of a property are inaccurate, the right of redress may be limited. Recently, the court ruled that an agent was not liable for providing false information to the effect that a property included a substantial area of land which was not in fact registered in the vendor’s name. The estate agent had simply accepted without enquiry that the area of land was part of the property and included it in the sale particulars. The court considered that any purchaser would have made sure that a proper search of the title was done and in any event the offer for sale was ‘subject to contract’ – placing the onus on the purchaser to make sure their enquiries were carried out carefully!
The Ombudsman service deals with claims against estate agents, but its powers are limited and the maximum award that can be made is £25,000. In practice, most awards are a small fraction of that amount. Members of the NAEA must belong to the OEA redressscheme.
Whilst the CEARA requires estate agents to belong to an approved redress scheme, the tendering process for operation of the scheme has not yet been completed and it is not expected to be fully implemented until October 2008. The relevant section of the Act itself mainly relates to record keeping and inspection of records issues and the grounds under which estate agents can be warned or banned. There is no specific mechanism for compensating consumers.
“The best protection for a buyer is to use a solicitor who will take care to make sure that everything is as it should be. A person’s house is normally the most valuable asset they will ever own and, as such, it makes sense to ensure that the purchase is carried out in a professional way,” says <<CONTACT DETAILS>>.
We can assist in all property matters and disputes arising from property and other transactions.
Partner Note
Consumers, Estate Agents and Redress Act 2007. See
Home Information Packs (no 2) Regulations 2007. see
Country Landowners – Something to Cheer
Following a recent ruling of the Court of Appeal, country landowners will have something to cheer about. The judgment means that hundreds of applications made by councils representing off-roaders and other users, for right of way over rural tracks, are likely to fail.
The Court ruled that access to land via two rights of way over Twyford Down in Hampshire was to be denied. The applications were not made in the correct form, but the Court concluded that even if they had been, in this case it was unlikely that they would have satisfied the requirements of the Wildlife and Countryside Act 1981, which aims to protect the rural environment.
The Natural Environment and Rural Communities Act 2006 had as one of its aims the extinction of vehicular rights over green lanes where the rights had fallen out of use. This resulted in a deluge of applications by off-roaders to get councils to recognise vehicular rights, so that they could pursue their activities. Many of these applications have not been accompanied with the full Definitive Map and other documentation necessary and seem doomed to fail as a result.
Partner Note
R (On the Application of the Warden and Fellows of Winchester College) v Hampshire County Council [2008] EWCA Civ 431.
Criminals Lose Out to Confiscation Rules
“A recent ruling of the House of Lords will come as a big blow to criminal conspirators hoping to protect their assets from confiscation under the Proceeds of Crime Act and related legislation,” says <<CONTACT DETAILS>>.
The judgment means that where co-defendants have jointly benefited from criminal activity, each could receive a confiscation order representing the entire value of the benefit, as if they had acted alone, and subject only to their having sufficient assets.
The case concerned a VAT fraud involving a loss to public funds of some £11 million. The defendant, Raymond George May, pleaded guilty to the charge against him in Sept 2001 and was sentenced to five years’ imprisonment, later reduced to four years on appeal.
Four companies were set up solely to perpetrate a so-called ‘carousel fraud’. The companies imported high-value microprocessors, sold them on in the UK and then re-exported them, retaining VAT reclaimed on the deals. The companies were closed down before any of the VAT retained could be recovered. This type of fraud is thought to be prevalent, causing huge losses to the public purse.
When a confiscation order of £3.2 million was made against him under the 1988 Criminal Justice Act, May appealed the decision. He failed to win the backing of the Appeal Court and so took his case to the House of Lords.
The House of Lords, however, upheld the original judgment. In its view the wording of the relevant legislation was clear enough and intended to deprive drug dealers, money launderers and other criminals of the benefit of their ill-gotten gains. The Lords ruled that the courts should not take into account any costs incurred by criminals, such as paying confederates.
There are only three questions that need to be answered in such cases. Firstly, has the defendant benefited from the crime? Secondly, what is the value of any benefit so gained and, finally, how much is recoverable?
Partner Note
R v May (Appellant) on appeal from the Court of Appeal (Criminal Division) [2008] UKHL. See
Debt Collectors – Better Protection for Consumers
Rogue debt collectors face tough new rules in a Government bid to improve consumer protection in this contentious area. This is because of changes to the Consumer Credit Act 2006 (CCA) which have recently come into effect.
Chief among the new powers given to the Office of Fair Trading (OFT) is the ability to fine debt collectors up to £50,000 for infractions and to impose limitations on the licences under which they operate.
Another major change is the removal of the limit of £25,000 above which the CCA did not previously apply. This means that even large loans (including those currently in existence) are now governed by its provisions.
The OFT has also imposed more stringent criteria for the granting of a licence to operate as a debt collector.
In October, further changes to the CCA will require lenders to provide borrowers with additional information, including annual statements.
Partner Note
Easements and Covenants – Changes to the Law Proposed
The law relating to covenants, easements and ‘profits à prendre’ over land is a relatively complex area given that such rights are common – the Land Registry has suggested that nearly two thirds of properties have some sort of easement over them and nearly 80 per cent have a covenant of some sort.
An easement is a right enjoyed by one landowner over the land of another. A positive easement (such as a right of way) is a right to go onto or make use of something in or on a neighbour's land. A negative easement is essentially a right to receive something (such as light or support) from the land of another without obstruction or interference.
Covenants are promises made with regard to land (i.e. not to allow it to be used for stated purposes).
Profits à prendre allow the holder the right to remove products of natural growth from another's land. Shooting and fishing rights come under this category.
The Law Commission has stepped in to reform the current system by proposing a simpler system for dealing with covenants and easements. It has issued a consultation paper which aims to remove anomalies and complications in the law. However, the proposed changes are limited to private law rights and will not deal with rights available to the public at large or with covenants between landlords and their tenants.
Partner Note
Estate Agency Fees Require More than Introduction
Estate agents must do more for their money than simply show a potential purchaser around a property, following a recent decision of the Court of Appeal.
When a Mrs Bicknell signed a standard sole-agency agreement with Foxtons Ltd. to sell her £1.4 million home, she agreed, among other things, to pay the agency 2.5 per cent of the sale price if contracts were exchanged ‘with a purchaser introduced by us [Foxtons]’.
In June 2005, Foxtons showed a Mr and Mrs Low around the house three times but, after initially showing interest in the property, the couple took no further action. In July, Mrs Bicknell ended the sole agency arrangement and agreed a multiple agency deal with Foxtons at 3 per cent commission.
She then appointed a second firm, Hamptons International, at a 2.25 per cent commission rate. In October, Hamptons spoke to the Lows and persuaded them to view the house again, eventually securing an offer of £1.15 million for the property. The offer was accepted and the purchase was completed in January 2006.
Hamptons duly submitted an invoice for their commission and received payment. When Foxtons learned of the sale, however, they also sought to be paid a commission. When payment was refused, they commenced court proceedings. The lower court decided in favour of Foxtons on the basis that the Lows were a purchaser introduced by Foxtons and this alone was sufficient to secure their right to a commission.
On appeal, the question of the meaning of ‘a purchaser introduced by us’ was again raised. The Court of Appeal held that Mrs Bicknell was not required to pay Foxtons for their initial, unsuccessful introduction. In order to charge commission, an agent must be the effective cause of the sale. Simply introducing a property to a person who eventually becomes the purchaser is not sufficient.
Had the reverse been true, Mrs Bicknell would have been in the unusual position of having to pay two agencies a commission for the same sale.
Partner Note
Foxtons Ltd. v  Pelkey Bicknell [2008] EWCA Civ 419.
Foreign Marriage Not Recognised
A marriage carried out under foreign law will not be recognised as valid in England and Wales if it could not have been validly contracted under English law.    
This was the conclusion of the court after a Bangladeshi couple sought an order that the marriage of their son, in a Bangladeshi ceremony, was a valid marriage under English law. Their son could not marry here as he is autistic and lacks the intellectual capacity necessary to be a party to a valid marriage.
The ceremony was conducted over the telephone, he being in England at the time and his bride in Bangladesh.
The judge concluded that the ceremony was void under English law and the man’s parents appealed.
The Court of Appeal considered that the rules governing domiciliaries of two countries applied but those rules could not help validate the marriage under English law. Nor could public policy considerations be ignored – not every marriage contracted validly abroad was entitled to be recognised as valid by the English court. Indeed, the actions of the man’s parents were potentially, if not actually, abusive to him and the court had the duty to protect him from that abuse.
Partner Note
KC and NNC v City of Westminster Social and Community Services and AC (by his litigation friend) [2008] EWCA 198.
HIP Temporary Provisions Extended
The Government has announced that it is extending the temporary provisions for first day marketing whereby a property can be put on the market without a Home Information Pack (HIP) provided one has been commissioned and paid for and is expected to be in place within 28 days.
Originally, the dispensation was to end for properties marketed after 31 May 2008 but the date has now been postponed to 31 December 2008.
The temporary dispensation that applies to leasehold properties, whereby the only compulsory document in the HIP is a copy of the lease, will also continue until the end of the year. This change has been made because the Government has instituted a new consultation process following industry complaints about the additional costs and delays being experienced when obtaining the documents necessary for inclusion in a HIP for a leasehold property. It is expected that the rules relating to the contents of HIPs for leaseholds may well change significantly between now and 31 December.
If you are buying, selling or letting a property, we can assist you to make sure the necessary legal work is carried out promptly, professionally and economically.
Partner Note
Press release, 8 May 2008. See
HIPs – Questions Answered
Part-exchanged Properties
With the property market tightening rapidly, a builder is more likely than ever to offer to take the existing property of a buyer in part-exchange for the purchase of a new one. Often, the builder will wish the house being part-exchanged to be put (or remain) on the market between the exchange of contracts and completion of the sale, in the hope that the builder will have the part-exchanged property ‘on its books’ for as short a time as possible.
When the property being part-exchanged is already on the market, a Home Information Pack (HIP) will have been prepared. If the HIP received by the builder is ‘in date’ (i.e. not more than 12 months have passed since the date the property was first marketed), then parts of it can be ‘recycled’.
In all cases a new sale statement and index would be required. However, the energy performance certificates and Land Registry documents can be reused. Searches cannot be reused in normal circumstances, as the liability for the accuracy of the search cannot be ‘passed on’. However, the builder can market the property using the previous documents of title until the change in ownership has been recorded by the Land Registry.
Shared Ownership Properties
If a shared ownership property is being purchased by a sitting tenant, a HIP is not necessary if no marketing of the property has taken place. However, if such a property is being sold on the open market, then a HIP is necessary.
Partner Note
‘Progress’ – Issue 32, March 2008.
In Brief
The Value of the Proceeds of Crime
When assessing the value of something for the purposes of making a confiscation order, the way the figure is arrived at is of importance, not least to the criminal whose assets are being seized. In a recent decision, the court ruled that for the purposes of the Proceeds of Crime Act 2002, the value attributable to an asset is the amount it would have cost to acquire it legitimately, not the amount for which the criminal could have sold it.
This is important because it means that the value of assets to be confiscated from a criminal (say in a case of stolen valuables) is not the value for which they could be ‘fenced’ but the amount it would have cost to buy them in the first place.
Partner Note
R v Rose; R v Witham [2008] EWCA Crim 239, All ER (D) 314.
In Case They Don’t Live Happily Ever After…
If you have family wealth that you wish to protect, the joy at the prospect of one of your children getting married or entering into a civil partnership may be tempered somewhat by a touch of trepidation in case the relationship doesn’t last, particularly if a large settlement of assets is to be made on the happy couple.
In such circumstances, the use of a pre-nuptial agreement (‘pre-nup’) is likely to make a great deal of sense. Legally speaking, such agreements are still rather a grey area. However, the judge in a leading case on the subject has most helpfully suggested a number of criteria which would assist the courts in deciding whether or not a pre-nup should be regarded as enforceable.
The most important of these from the perspective of the parties to a pre-nup are:
  • does the party being asked to sign the pre-nup understand it?
  • has he or she been properly advised as to its terms?
  • was pressure exerted by one party to make the other sign?
  • was there full disclosure of the relevant assets?
  • was pressure exerted by anyone else to make them sign?
  • was the agreement signed willingly?
  • did one party exploit a dominant position?
  • was the agreement entered into in the knowledge that there would be a child?
  • has any unforeseen circumstance arisen which would make enforcing the pre-nup unjust?
  • does the order preclude the payment of any periodical payment for maintenance and if so, would it be unjust to hold the parties to that agreement?
  • are there grounds for believing that upholding the agreement would be unjust?
For a pre-nup to achieve the desired object, it must be properly drafted and put into place in the correct circumstances. In particular, both parties to it should have the benefit ofindependent legal advice.
If you are concerned that a relationship might not have a happy ending, we can assist you to help protect your family’s assets from the depredations of an ex-spouse or civil partner. Contact <<CONTACT DETAILS>>
Partner Note
K v K (Ancillary relief: Prenuptial Agreement) [2003] 1 FLR 120.
See also the recent Crossley v Crossley [2007] EWCA Civ 1491.
Is Your Website a Time-Bomb?
Not so long ago, virtually all websites had some sort of business purpose. However, the ‘social networking’ phenomenon has led to the creation of hundreds of thousands of websites which exist primarily for the exchange of information, which may be uninformed – or worse. The problem is exacerbated by ‘open’ websites, such as blogs, which allow public access to the site content, presenting the danger that libellous material may be published.
Allowing uncontrolled vilification of a person or company is unlikely to be well received by the subject of the abuse. Fortunately, the UK has a strong presumption of the right of freedom of expression. However, that right is not unlimited and the law also gives legal persons (i.e. including companies and associations) the right not to be the subject of false and defamatory allegations.
The law of libel requires a claimant to show that a defamatory statement about them has been made by the defendant in a form which has been seen by at least one other person. The right to sue runs for a year from the date of publication – and each time the defamatory comment is republished, the clock starts again. There is no inherent difference between a website and (say) a newspaper in English libel law.
There are various defences to an action for libel, the most important of which is that the statement made was justified (i.e. true). It is also a good defence to show that the publication was done innocently, which means that the publisher was unaware that defamatory material had been published by him and that his ignorance of that fact was not negligent. This defence is difficult to sustain, however, especially if the publication is a commercial one.
The most effective solution if you operate a blog or similar open website is to review the material on it reasonably frequently and remove anything which may be defamatory. If a complaint is received, action should be taken immediately.
It should also be remembered that the law of copyright applies to the web as well as to paper publications. Publishing material gleaned from the Internet but written by someone else, without their permission or an appropriate licence, is a breach of copyright. If the material has commercial value, a claim for damages may result.
Partner Note
There is a fairly comprehensive review of the current state of play in this area in the New Law Journal 14 and 21 March 2008, pp 387-9.
Judges Slam Council Over Adoption
Local councils that achieve high levels of adoption are rewarded by increased funding and this is widely thought to affect their adoption policies.
The Court of Appeal recently criticised East Sussex County Council over its approach when it proceeded with the adoption of a baby girl against the wishes of the girl’s father.
The child was born after a casual affair and her father did not even know he had a child until the Council contacted him to tell him that care proceedings had been commenced, which was some time after the baby’s mother had abandoned her in a special care unit.
The father was initially unable to take part in the proceedings since he was in hospital after suffering a heart attack. When he had recovered sufficiently, he went to see his solicitors, who attempted to stop the adoption proceedings. The Council ignored his intervention and placed the baby with the prospective adoptive parents before his case could be brought to court.
After an earlier reversal in court, the father took his case to the Court of Appeal on the basis that the Council’s action was a breach of his human right to have a family life. The Court considered that the common belief that councils have a ‘secret agenda’ to place as many children as possible for adoption fuelled ‘public distrust in the good faith of public authority’. However, the Court refused the appeal on the ground that the 2002 Adoption and Children Act is compatible with human rights law. The Council had complied with the Act so the father’s action failed.
The Court took the unusual step of ordering that copies of the judgment be sent to all family judges and all adoption agencies, stressing that the wishes of both parents had to be taken into account in adoption proceedings. The Court advised that it wishes to ensure that the conduct of the Council in this case is not repeated elsewhere.
“Councils are often criticised for the way in which they handle child care cases,” says <<CONTACT DETAILS>>. “If a council’s decision is to be contested, it is important to act as quickly as possible.”
Partner Note
Reported in the Times, 2 May 2008.
New Vetting Agency to Start Work Next Year
The new Independent Safeguarding Authority (ISA) is due to commence operations in October 2009 and will be responsible for vetting the millions of peopleseeking to work with children or vulnerable adults. The ISA was established in January 2008 by the Safeguarding Vulnerable Groups Act 2006.
The authority will maintain the database of people who are barred from working with children and vulnerable adults, bringing all existing barring arrangements under one roof.
Registration with the ISA will be compulsory for all those who wish to work with people in either category. A fee of £64 will be payable, which will cover registration with the Criminal Records Bureau (CRB) and the fee for the search of the records of the CRB.
The ISA’s remit is to help to avoid harm or the risk of harm to children and vulnerable adults by preventing those who are unsuitable from working with them from gaining access to them through their work. It will gather information on such persons in partnership with the CRB and store the information securely, making barring decisions on a case by case basis. It will operate independently of the Government.
Says <<CONTACT DETAILS>>, “The bringing together of the relevant databases within one organisation should act to give a more robust and quicker vetting system, which will come as a relief to employers seeking to recruit staff who will work with children or vulnerable adults.”
Further details of the ISA’s mode of operation and the system for appeals against its decisions will be announced in due course.
Partner Note
See for further information.
No Trust Created Where Intentions Not Clear
When a couple’s conduct over a period of time is consistent with co-ownership of a property, it might be thought that the property would come to belong to them both, no matter what the legal form of ownership may be. Such assumptions are often tested in divorce cases when a property is owned by one or other of the divorcing couple.
Recently, a case came before the Court of Appeal dealing with just such an issue. It involved a dispute over the financial settlement decided by the lower court.
The divorced couple lived in the family farm, which was originally owned by the mother of the husband. Latterly, the husband and his mother had created a partnership to run the farm and the farmhouse was then owned by the two of them as joint tenants.
Early in the couple’s relationship, the wife had helped out with the farming business and took part in business decisions regarding the farm. She received no payment for this. She also bought additional land, which added value to the property, and subsequently operated a successful riding school on the farm. This was initially financed by an interest-free loan from a company owned by her husband. She later incorporated her business.
Following the break-up of their marriage, the wife moved out of the farmhouse and claimed a share in the farm in the divorce settlement. Neither her ex-husband nor his mother had ever raised the question of the wife’s ownership specifically and nor had she. However, she claimed that her right to a share arose because her ex-husband and his mother had conducted themselves in a manner which supported the view that there was a common intention to hold the farm jointly – in legal parlance that a ‘constructive trust’ had arisen in her favour. The judge awarded her a quarter share in the value of the farm. Her ex-husband and mother-in-law appealed.
In the Court of Appeal, the judge took a different view, holding that the conduct of the parties did not necessarily prove the fact that the ex-wife was intended to have a beneficial interest in the farm. In the absence of any legal agreement regarding the ex-wife’s ownership of the farm, he could not see how encouragement of the horse-riding business or her minor role in the farming business could be interpreted as constituting sufficient evidence that a constructive trust had been created. In any event, her claim would be counterbalanced by the support she was given when setting up her business.
Says <<CONTACT DETAILS>>, “In truth, claims of this nature can be a bit of a lottery and much will depend on the availability of contemporary evidence of the intentions of the parties involved. The simplest way to avoid an appearance in court is to make sure that the intentions of the parties are properly evidenced in the first instance so that, in the event of a later dispute, the position can be readily resolved. We can assist you in making sure that your assets are legally held as you wish them to be and can also advise you on planning to minimise capital taxes.”
Partner Note
Morris v Morris and others CA, 22 Feb 2008.
See The Solicitors Journal, 4 March 2008.
No You Cock-a-Doodle Don’t
Noise nuisance is regrettably an increasing feature of modern life, but one normally expects problems with noise to be associated with city living, not the countryside. Recently, however, a man from Shepton Mallet in Somerset was given an Anti-Social Behaviour Order (ASBO) and ordered to pay fines and costs totalling £7,500 after he defied a noise abatement order. The reason? – his flock of 80 chickens, which was the cause of a sustained series of complaints about noise from his neighbours.
On a test visit in 2006, investigations carried out by an independent environmental health officer, sent by South Somerset Council, recorded 800 ‘crowings’ between 5 am and 7 am. Neighbours also complained of the smell caused by the birds. An order was made requiring the man to eliminate the nuisance to his neighbours, but he failed to comply with it.
The magistrates were unimpressed with the man’s lack of cooperation and issued the ASBO. They also banned him from replacing the chickens with other animals.
Problem neighbours can be the blight of anyone’s life and the ASBO legislation does at least provide one possible method of reducing or eliminating problems of anti-social behaviour. If you have problems with noisy or anti-social neighbours, or problems arising from late-night noise due to pubs or clubs, we can advise you on the best course of action to take.
Partner Note
Reported in The Guardian, 16 April 2008.
The Noise Act was amended by the Clean Neighbourhoods and Environment Act 2005, part 7. See
Noise Nuisance Brings Damages, not Cessation
A recent case, which was brought by a family suffering as a result of exposure to excessive noise, has reached a decision which might be regarded as missing the point.
The Watson family had the misfortune to live near a motor racing circuit, which had gained the planning permissions necessary for its activities in 1963 and 1998. The 1998 planning permission required the owners of the circuit to operate under restrictions designed to limit the nuisance suffered by those living close to it.
The Watsons went to court, alleging that the circuit’s operators had wrongfully permitted excessive noise for a period of several years. They sought an injunction to prevent the use giving rise to the noise.
The court considered that the nature of the neighbourhood had not changed as a result of the track’s use, despite the gradual intensification of use. There were a number of different arguments advanced on both sides, but the salient point is that the court considered that the claim was not one which could be properly dealt with by an injunction, which would prevent or limit use of the circuit, but should be settled by way of the payment of damages by its operators to the Watsons.
“There are no doubt some people who consider that a noise nuisance cannot be compensated for by the payment of money and that removal of the nuisance would have been the correct course,” says <<CONTACT DETAILS>>. “The judgment of the court may well have been made easier by the fact that the Watsons had indicated that they would be prepared to be compensated for the noise nuisance by way of damages provided the circuit was only used for a maximum of 40 days a year. The courts are not often keen on closing down businesses, especially those which have functioned legitimately for many years.”
Partner Note
Watson v Croft Promo-Sport Ltd. [2008] EWHC 759 (QB).
Rights of Way – Landowners Take Note
Landowners who wish to prevent their land becoming part of the public highway should take note of two recent decisions in the House of Lords.
The cases dealt with what constitutes a landowner’s ‘sufficient intention’ not to allow their land to be dedicated as a public highway.
Land can become a public highway by being added as such to the Definitive Map maintained by the county council, provided an application is made. The Definitive Map shows publicly accessible bridle ways, footpaths and byways and once entered onto the Map, the status of the highway is conclusively proved.
For property owners who do not wish their land to become open to the public, the correct strategy is therefore one of prevention. Until recently, all that was necessary to prevent an application for the Definitive Map to be altered was for the landowner to write to the council opposing it or to demonstrate some prior right over the land in question (i.e. that it is let to someone else). However, the Lords’ decisions mean that this is no longer sufficient.
It is now recommended that any landowners who wish to oppose an application, or to prevent one being made, consider taking further measures, such as erecting appropriate signs advising that the land in question is not a public right of way and obstructing paths. Trespassers should be advised that the land concerned is not open to the public.
It is recommended that evidence should be retained of all measures taken.
If land is used as a public right of way for 20 years without steps being taken by the landowner to preserve their right to exclusive use of the land, and without demonstrable intent to oppose dedication of the land as a public highway, the right to prevent the land concerned being dedicated as such will be lost.
Says <<CONTACT DETAILS>>, “Landowners are also advised to review periodically the status of any measures they have put in place (e.g. signs and obstructions) and to repair or replace them as necessary. This will enable them to demonstrate their continuing intention to retain their exclusive rights over the land, should the question arise.”
Partner Note 
R (on the application of Godmanchester Town Council (Appellants) v Secretary of State for the Environment, Food and Rural Affairs (Respondent) and one other action R (on the application of Drain) (Appellant) v Secretary of State for the Environment, Food and Rural Affairs (Respondent) and other action [2007] UKHL 28. See
Selling Your Property at Auction

In recent years, increased mobility and growing rates of home ownership have
meant that ever-larger numbers of people nowadays inherit properties from
relatives who lived many miles away. Similarly, many buy-to-let properties
have been purchased in areas with a large student population, miles away
from where their owners live. In such cases, when the time comes to sell the
property, it is often difficult for the usual process of showing it to
prospective purchasers to be carried out by the owner.

In such circumstances, it is quite common for a property to be sold at
auction. If you are considering selling a property by this method, here are
some steps you can take to help make sure your sale goes as smoothly as

Well before the auction is planned, make sure you put together the necessary
documentation, such as the Home Information Pack.

Make a list of the information a prospective buyer will find useful, such as
the age of the central heating system, wiring etc. and include any guarantees.

Set your reserve price, which is the lowest price you will accept for the
property. If the reserve is not met at auction, the property will not be
sold. The reserve price should therefore be reasonable as if the property
does not sell, there will still be costs to meet for the marketing of the
property and the related legal work.

You should also decide when you want the completion date to be. The contract
to buy and sell is created when the auctioneer's hammer falls and the
deposit is payable immediately, with the completion normally a few weeks

Work out your plan B. In the present market, property is becoming more
difficult to sell, so do not assume that the property will inevitably sell
at auction. It may not. Make sure, therefore, that you are prepared for the
possibility that after the auction, the property will still be yours. Vacant
properties do qualify for rate relief, but other costs (such as insurance)
may rise.

We can assist you with all legal matters relating to buying and selling
property. Contact <<CONTACT DETAILS>>.

Settlement Must Be Fair
When the financial arrangements are being made on divorce, the court must ask itself whether these are fair and do not discriminate against one party bearing in mind all the circumstances.
Recently, a woman appealed to the Court of Appeal regarding the orders for ancillary relief (as they are known to lawyers) made for her benefit following her separation from her husband. The couple had married in 1992 and had a child that year. They separated twelve years later. The wife had inherited a substantial sum which the couple lived off without working for the first five years of their marriage. In 1997 they used her capital to set up a car wash business, which the husband ran, paying a below-market rent to his wife.
When they separated, the couple’s assets were valued at a little under £1.4 million, which included the car wash business. The judge concluded that the yardstick of equality was applicable to the division of the assets and ordered the transfer of the building housing the car wash to the husband.
The wife had argued that her husband’s misconduct had been so grievous as to justify departing from the normal 50:50 split. Indeed, she argued that his application for ancillary relief should be rejected altogether. This argument was rejected on the facts in the lower court, as was her contention that since she had introduced all the assets to the marriage, they did not constitute ‘matrimonial assets’ for the purposes of making an equitable division. She appealed to the Court of Appeal.
In the Court of Appeal, it was held that the assumption of equality of division of assets could only be departed from if there were a good reason for so doing. In the present instance, the assets had been disproportionately brought into the marriage by the wife. Whilst it made sense that the ex-husband should be able to continue in business, this did not mean that the property he let should be transferred to him.
The Court therefore concluded that the ex-husband should be allowed to continue to occupy the premises, paying rent at half the present market rate, and that on the sale of the premises, the money received should be divided equally. The judge declined to transfer the car wash premises into joint ownership because to do so would have adverse tax consequences.
In practical terms, the decision split the family assets so that approximately two thirds remained with the wife.
“The judge made the point that each case must be dealt with on its own facts and that this case did not set a precedent,” says <<CONTACT DETAILS>>. “It is instructive to note that as is normal, arguments relating to the conduct of the husband were not considered relevant.”
Contact us for advice on all family law issues.
Partner Note
B v B (Ancillary Relief) [2008] EWCA Civ 543.
Shared Intentions Determine Ownership
The danger of cohabiting without making an express agreement as to how the title to property is to be held has again been underlined by a recent case.
It concerned a woman who had lived with a man for several years in a house which was registered in their joint names and financed by a mortgage. However, there was no document recording the couple’s respective shares in the ownership of the property. The man had paid the deposit on the house from his own funds and also paid the mortgage repayments. He also paid other costs relating to the property, such as rates and utility bills. The couple had children and the woman, who worked, spent the majority of her income on them and the maintenance of the family. The couple drew up wills leaving their estates to one another.
When their relationship broke down, the man argued that whilst he intended that his partner should inherit the property on his death, he had not intended it to be owned in equal shares. In court the judge decided that ownership of the house should be apportioned by the respective contributions of each party to its purchase. Since the woman had made no contribution, her share was nil. She appealed to the Court of Appeal, asserting that a beneficial joint tenancy had been created with her rightful share being 50 per cent. The man argued that his intention had been only that she would inherit the property if he predeceased her and they were still a couple on his death.
The Court of Appeal found that the judge in the lower courthad erred in considering the couple’s respective contributions to the cost of the property as representing their intentions with regard to its ownership. The fact that the property was jointly owned justified the assumption that both were beneficial owners. The ownership split had to be determined by the intentions of each party and the important issue was that the relevant intention was the intention understood by the other party. Furthermore, the respective contributions of each party could not be conclusive. The man’s intentions were not made clear. His argument that his partner’s share should be a lesser sum did not rest on logic and he could not demonstrate that the couple had shared the common intention that her share should be other than a half of the total.
In this case, had there been documentation created when the property was purchased to show how it should be owned, there would have been little room for dispute. The fact that there was no evidence of any such agreement made it possible for the case to go all the way to the Court of Appeal.
If you buy a property with someone else, having the agreed basis of ownership documented is inexpensive and easy to do. Contact <<CONTACT DETAILS>> for advice.
Partner Note
Lynne Fowler v Carl Anthony Barron [2008] EWCA Civ 377.
Victory for Licensee in ‘Speculation’ Case
Thwaites, the Blackburn-based brewery which owns 400 pubs, has won a victory which will bring cheer to licensees, but may cause consternation for those who live near busy pubs that open well into the night. It illustrates that objections to extended licensing hours based on the nuisance caused must be accompanied by evidence that this is in fact the case. In the decision in point, the High Court ruled that a decision by magistrates to cut the opening hours of Thwaites’ Saughall Hotel in Saughall Massie on Merseyside was not based on evidence.
The pub had initially been granted a licence by Wirral Council to open until 1 am on Friday and Saturday and until midnight during the rest of the week. The Saughall Massie Village Conservation Society appealed to the local Magistrates’ Court against the decision on the ground that the extended hours would lead to excessive noise and disorder. The magistrates agreed and reduced the hours. Thwaites appealed to the High Court, arguing that the objection was based on speculation rather than evidence, as there had not been any complaints of noise nuisance, and also that the decision of the magistrates was contrary to the philosophy of the Licensing Act and the restrictions placed on Thwaites were unnecessary to promote the licensing objectives. The judge agreed, reinstating the original decision of the Council.
The effect of the decision will be to make it easier for licensees to defeat objections to extensions where these are based on speculation rather than evidence.
The decision is a blow for people living in areas which they feel will be blighted by a decision to allow late-night opening of a pub or club. Whilst there may be other arguments for opposing an application for extended licensing hours, doing so solely on the basis of a nuisance for which there is no evidence is unlikely to be successful.
A more successful strategy might involve collecting evidence of existing problems (such as noise or anti-social behaviour) arising from the premises and making complaints to the authorities regarding them.
We can advise you as to what action to take to oppose licensing applications, planning applications or other undesirable proposals that concern you.
Partner Note
R (on the application of Daniel Thwaites plc) v Wirral Borough Magistrates’ Court [2008] EWHC 838 (Admin).
Widely reported – e.g. see Licensing Flash, 8 May 2008.
What is Self-Defence?
In principle, the notion of self-defence is straightforward. A person is entitled to use reasonable force to defend themselves against attack and in certain other circumstances. Self-defence is a valid defence against prosecution when the circumstances warrant.
Guidance on the use of reasonable force states that, ‘a person may use such force as is reasonable in the circumstances’ for the purposes of:
  • self-defence; or
  • defence of another; or
  • defence of property; or
  • prevention of crime; or
  • lawful arrest.
In assessing the reasonableness of the force used, prosecutors should ask two questions:
  • was the use of force justified in the circumstances? – i.e. was there a need for any force at all? and
  • was the force used excessive in the circumstances?
The defence of self-defence rests on the belief of the person who is subjected to the assault. Recently, the House of Lords considered the issue of the justification of a claim of self-defence in civil, as opposed to criminal, proceedings.
The case arose after a man was killed by a firearms officer serving with Sussex Police. The police officer stood trial for murder and successfully pleaded self-defence on the basis that he honestly and reasonably (albeit mistakenly) believed that the man he shot posed a threat to him and to the public. He was acquitted.
However, the victim’s family pursued a civil case against the officer. This went to the House of Lords, which took the view that the civil law of tort exists to ensure that the rights of people are protected. One of those rights is the right not to be subjected to physical harm. This right has to be balanced by a person’s right to protect themself. At issue is the appropriate balance between these rights under civil law. The Lords ruled that for the purposes of civil law, to hold that a mistaken belief that one was about to be attacked could justify a pre-emptive attack in self-defence was a completely inappropriate striking of the balance of rights.
Accordingly, the defence against a civil suit on the basis of a mistaken belief must fail. The acquittal on the criminal charges did not mean that the policeman had not unlawfully assaulted the man.
On a split decision, the Lords ruled that the man’s family was free to pursue a claim for compensation from Sussex Police.
Says <<CONTACT DETAILS>>, “It remains to be seen to what extent this judgment will lead to further claims in the civil courts by persons injured when the other party to the case successfully make

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