Private Client Titles ~ Winter 2009/2010


ASBI Permitted As Behaviour Was ‘Housing-Related’
In a recent case, a man who was banned from entering the village in which he had previously lived, after successive acts of anti-social behaviour, has lost his appeal against the imposition of an anti-social behaviour injunction (ASBI).
Michael Redpath had lived in Warneage Green in Wiltshire for 48 years and had a history of anti-social behaviour when drunk. On one occasion he was imprisoned for six months for drink-driving, after his neighbours tipped off the police. In retaliation, Mr Redpath harassed them and damaged their property. His repeated anti-social behaviour led to Swindon Council evicting him from his home in 2006. In addition, Swindon County Court also granted the Council an ASBI forbidding Mr Redpath from entering the village.
In 2007, in defiance of the injunction, Mr Redpath entered the village and caused damage to cars and threw a stone through the window of a house. He was sentenced to eight weeks in prison and given another ASBI. Undeterred, he again entered the village in 2008. This time he threw a brick through a car windscreen and used a metal pole to smash another house window. He was served with yet another ASBI banning him from entering the village and from behaving in an anti-social manner.
Under section 153A of the Housing Act 1996, Mr Redpath’s conduct had to be deemed ‘housing-related’ in order for the Council to be permitted to use an ASBI against him. The Court of Appeal ruled that his conduct did fall within the definition of ‘housing-related’ for the purposes of the Act. His frequenting of a bus shelter and Council-owned garages let to tenants in the village was held to be housing-related conduct. It did not matter whether or not Mr Redpath or his former neighbours were Council tenants.
The Court was of the view that the removal of Mr Redpath as a tenant was insufficient on its own to protect the inhabitants of the village from his anti-social conduct.
The purpose of the law relating to anti-social behaviour is to reduce or eliminate it. Whilst the Court was aware of the danger of interpreting the legislation too widely, it should also not be interpreted in an artificially restrictive way. In situations such as this, citizens have a right to be protected from the anti-social actions of others. Mr Redpath’s appeal was therefore dismissed.
Partner Note
Swindon Borough Council v Redpath [2009] EWCA Civ 943. See
Care Orders – The Correct Test
Under the Children Act 1989, a court may only make a care order or a supervision order if it is satisfied that the child concerned is suffering, or is likely to suffer, significant harm.
In a recent case, the Court of Appeal overturned the decision of a judge who ordered that an eight-month-old baby should be returned to her parents rather than remain in care. The judge had not applied the correct test for determining the likelihood that the child would suffer significant harm.
The baby in question had been taken into care by Calderdale Council three days after her birth, due to the risks posed to her safety should she remain in the parental home.
The mother already had a two-year-old child, by a different father, who had been removed from her parents because the threshold for making a care order had been judged to have been crossed as it was deemed that the baby was likely to suffer significant physical and emotional damage. At that time, the mother was addicted to drugs, had no permanent address and regularly exposed the baby to other drug users and alcohol abusers. The care arrangements made for the child were deemed to be inadequate as she was being looked after by the mother’s sister, whose own children had been placed in care.
A housing support officer had attempted to secure a proper home for the elder child but the mother refused to co-operate and when her daughter was admitted to hospital she refused to provide details of her address. Also, the father of the child was alleged to have been violent towards the mother.
The father of the second baby had a history of heroin use and criminal behaviour, including violence, and had already served ten years in prison. However, the judge in the lower court had set great store by the good conduct of the parents after the baby’s half-sister had been taken into care and accepted that they had now ‘forsaken all use of alcohol and drugs’. He ordered that the baby be returned to her mother, even though the four witnesses – a clinical psychologist, social worker, independent social worker and children’s guardian – were all of the opinion that the reported changes in behaviour were insufficiently substantial to constitute rehabilitation and the child would be in danger of suffering significant harm if she were returned to her parents.
The Court of Appeal found that the judge had failed to apply the correct test for determining the threshold at which a child should be taken into care. He had equated likelihood with probability. What should have been weighed up when deciding whether significant harm to the baby was likely was not whether the harm was more probable than not but whether there was a real possibility of significant harm which could not sensibly be ignored.
Based on all the evidence, the Court of Appeal found that the threshold for making a care order had been crossed in the case of the younger child and the order that the baby be returned to her mother was therefore set aside.
Contact <<CONTACT DETAILS>> for advice on any family law matter.
Partner Note
Re MGR [2009] Civ 942.
Couple Sell Farm to Pay for Chancel Repairs
After fighting their case all the way to the House of Lords and losing, Powys couple Andrew and Gail Wallbank have been forced to sell their farm in order to pay for repairs to the chancel of their local church and their legal costs in fighting their case.
When the couple first acquired the property, they were only vaguely aware that it was ‘rectorial property’, which meant that it came with a legal obligation, under the Chancel Repairs Act 1932, to maintain the local church at Aston Cantlow. They thought this a mere technicality until they were presented with a bill for more than £200,000 for repairs to the 13th century church. They undertook a series of legal battles contesting the Church’s demands.
Having lost their case, the farm was sold at auction for £850,000, but only after a payment of £37,000 had been made to the Church authorities in order to remove the legal obligation to maintain the church from future owners. Unless that had been done, the property was virtually unsaleable. Mr Wallbank had inherited the farm from his father and had been unaware of the extent of the obligation attaching to the property until the demand was made by the local Diocese.
Says <<CONTACT DETAILS>>, “In any property transaction, it is essential to be aware of and understand any obligations attaching to the property or rights others may have over it. We can assist you to make sure your property acquisition does not bring with it unnecessary risks.”
Partner Note
Widely reported, October 2009.
Credit Ratings at Risk from Ex-Partners
Millions of Britons could see their credit ratings compromised without knowing it, simply because of the actions of an ex-spouse, says online credit report service Credit Expert.
According to the recent report, more than half of those surveyed did not know that the financial status of an ex-spouse or ex-partner can have a negative effect on their credit rating. It was also reported that one in ten Britons currently in a relationship and sharing finances admit keeping a bank account secret from their partner, while one in five hide their debt and money worries from their partner. This amounts to some £30 billion of ‘hidden’ debt.
A previous report from insurance firm Aviva shows that £4.3 billion is spent annually in the UK on divorce settlements and that 62 per cent of couples share their finances prior to the split. This does not include the many millions of unmarried couples for whom separation is equally, if not more, financially challenging.
“Action should be taken by those who have shared accounts during a relationship to prevent their ex-partner’s bad habits from having a negative impact on their own credit rating,” says <<CONTACT DETAILS>>. “Just applying for a credit account in joint names can link two individuals for a long time, even if the account is not opened.”
Other findings from the Credit Expert report include:
  • 50 per cent of those surveyed wrongly believe that the financial status of previous occupants of their home can affect their credit rating, while 56 per cent think that the poor credit history of other family members can do so. This is only true if they are linked to you financially;
  • 75 per cent wrongly think that a bad credit history puts you on a credit blacklist. These do not exist. No matter how bad your credit rating is, you will not be placed on a blacklist;
  • 50 per cent do not know that being registered to vote will improve their credit rating;
  • 48 per cent do not know that checking their credit report will not affect their credit rating;
  • 48 per cent do not know that paying a mobile phone bill late will impair their credit rating;
  • Nine out of ten do not realise that being turned down for credit will not show up on their credit report. Any application for credit will show up, however, and numerous applications (accepted or declined) will have a negative impact on someone’s credit rating; and
  • 80 per cent do not know that the size of their credit limit can also affect their credit rating.
With recent reports indicating that lending criteria are set to become more conservative, the wisdom of looking after your credit rating is obvious.
Partner Note
See and
Crime is With You for Life
It is widely thought that once a conviction is ‘spent’, it is erased from ‘the system’ and simply ceases to exist. Regrettably for those who may have a youthful indiscretion or two on their record, this is not so, as is illustrated by a recent case.
The Information Commissioner sought to require Humberside police to remove from its records details of the convictions of five people. The convictions were for minor offences – one example being a conviction for theft by a sixteen-year-old that led to a fine of £15. In each case the person convicted had not been in trouble with the law subsequently.
The convictions were ‘spent’ under the Rehabilitation of Offenders Act 1974 (ROA), which provides that where the punishment is a fine, a conviction is spent after 5 years (2½ years where the offence was committed by a person under 18 years of age) and in the case of a conditional discharge, at the end of the period of the condition. The ROA provides that spent offences are to be treated for some purposes as if they never occurred.
The Information Commissioner’s application to delete the records was opposed by the police, who were concerned that acceding to the demand would mean that more than a million similar records of criminal offences would have to be expunged from their files. Their argument was that the use made of the records was appropriate – in data protection terms ‘adequate, relevant and not excessive in relation to the purposes for which they are collected’. In the view of the police, the ‘purposes’ included the provision of criminal intelligence to other bodies, in particular the need to provide full records for disclosure to the Crown Prosecution Service when required.
The Court of Appeal held that the value of the information to the police was sufficient reason for its retention. Whilst the Information Commissioner had the right to supervise this, he did not have the right to say for how long the data should be retained or indeed to dictate the specific purposes for which it could be used.
Since police policy is to retain such information for 100 years, few people will live to see a youthful conviction removed from the criminal records system.
Partner Note
Chief Constable of Humberside v the Information Commissioner [2009] EWCA Civ 1079.
Dangerous Driving – Extensive Driving Training Deemed Irrelevant
The Court of Appeal has ruled that the special skill or lack of skill of a driver is not relevant when determining whether or not he is guilty of dangerous driving.
Craig Bannister, who had completed a police advanced driving course, lost control of his car on the M4 whilst driving at 113 miles per hour in wet conditions, in the dark and with no lights on. In the lower court, it was common ground that whether or not Mr Bannister had been on duty and responding to an emergency call was not relevant when considering whether he should be convicted of driving dangerously. Even though the police drive quickly when responding to an emergency call, they are not allowed to drive dangerously. However, Mr Bannister argued that the earlier ruling in Milton v Crown Prosecution Service –  in which it was deemed relevant to consider in such cases those circumstances in favour of the defendant, such as the possession of advanced driving skills, given that unfavourable circumstances such as drunkenness or illness could be taken into account – was relevant to his case. In his summing up to the jury, the judge had referred to the ruling in Milton but Mr Bannister was convicted of dangerous driving under Section 2A of the Road Traffic Act 1991.
Mr Bannister appealed on the grounds that the judge’s summing up had not been clear. He had failed to convey to the jury the correct position based on Milton and the conviction was therefore unsafe.
The Court of Appeal disagreed with the reasoning in Milton that a driver’s skill has any bearing in such cases. The test to be applied is clearly set out in the Act. It is an objective test of the competent and careful driver. To treat Mr Bannister differently from someone without his level of experience and training would be inconsistent with that test.  However, the Court did find that there was a real risk that the jury had been confused by the summing up in this case with regard to the correct test to be applied. It therefore quashed Mr Bannister’s conviction for dangerous driving and substituted a conviction for careless driving.  
Partner Note
R v Craig Bannister [2009] EWCA Crim 157.
Decision to Expel Pupil Upheld by Courts
The parents of an independent school pupil have lost their appeal against a judge’s decision to dismiss their claim that their son’s expulsion from the school amounted to a breach of contract and warranted injunctive relief and the payment of damages by the school. The parents claimed that the expulsion of their son was an unjustifiable and unreasonable reaction to his conduct and the fact that the headmaster knew one of the members of the panel that had reviewed his decision had produced a biased result. They also argued that the panel had failed to make an independent assessment regarding whether or not expulsion of their son was an appropriate action to take in the circumstances.
The decision to expel the boy was initially reached by the headmaster alone. It was then assessed and upheld by the review panel, which consisted of members of the school’s board of governors and an independent member, who was the headmaster of another school. The judge in the lower court concluded that the decision was reached fairly, without bias, subject to an independent review. The parents appealed against the decision.
It was not disputed that the headmaster of the school was acquainted with the independent member of the review panel, but the Court of Appeal found that there was no evidence that the two men socialised with one another apart from attending the same church twice a month. They only knew each other on a limited professional basis, which was almost unavoidable given the relatively small number of independent school headmasters. The Court therefore held that a fair minded observer would not consider this would lead to a biased result.
The Court of Appeal also upheld the decision that the review panel had independently assessed whether expulsion was a punishment commensurate with the boy’s conduct. The judge had not only examined the panel’s written decision but had also taken oral evidence from its members and taken account of the notes made during the decision-making process. The panel had in fact dismissed some of the reasons put forward by the headmaster of the school as justification for his decision to expel the boy but concluded for itself that the boy’s conduct did warrant expulsion. A member of the panel had also given oral evidence explaining the role of the panel and this had assisted the judge in reaching his decision.
The Court found that, taken in its entirety, the evidence showed that the panel’s decision was reached fairly and independently and so the parents’ appeal was dismissed.
Disputes such as this are not often heard in the courts, but the fact that such decisions may be subject to legal review is a powerful incentive for schools to ensure that their procedures for exclusion of pupils are watertight. If you are involved with the governance of a school, or are concerned about issues such as these, contact <<CONTACT DETAILS>> for advice.
Partner Note
Ellis and another v Merchant Taylors School, CA 8 Sept 2009. Reported in the Solicitors Journal, 15 September 2009.
Divorce Arrangements Overturned When Judge in Error
When dividing family assets on separation or divorce, judges sometimes make some surprising decisions. Where these are erroneous or unfair, they can be overturned.
In a recent case, a judge ruled that in order to achieve a ‘clean break’ between a childless couple in their 40s, 65 per cent of the family assets should be awarded to the wife and 35 per cent to the husband.
The wife had claimed that her husband ‘wasted’ £2 million of the family’s wealth in the period during which the financial arrangements were the subject of argument and the judge in the lower court took account of this when making her decision. She also included in the assets available for distribution a deferred asset in the form of a compensation payment that was receivable by the husband some time in the future. He appealed against the decision.
On appeal, the calculations were reworked by the appeal judge and a new clean break arrangement made. The original decision had wrongly treated the deferred asset as a liquid (readily available) asset and the allegation of the ‘wasted’ £2 million could not be substantiated.
Says <<CONTACT DETAILS>>, “Allegations which do not stand up to close scrutiny are often made in court and it is by no means uncommon for decisions based on evidence that lacks a strong foundation to be overturned on appeal.”
Partner Note
Murphy v Murphy [2009] EWCA (Civ) 18 September 2009.                       
Divorce Proceedings – Husband Ordered Out of Ancestral Home
History doesn’t count for much when it comes to divorce, as a Sussex man found out recently. Anthony Grubb’s family had owned the estate at Mayes House in East Grinstead for many years, but when he separated from his wife, Jennifer, it was she who was given the exclusive right to occupy the property by the court.
Mr Grubb’s wife had applied for and was granted an ‘occupation order’ on the grounds of stress caused by his behaviour. It was argued that her health would continue to suffer were her husband to remain living under the same roof.
The effect of the order is to bar Mr Grubb from the property until such time as the financial side of the divorce is settled. This is likely to be some way off, as the first hearing on ancillary relief (as lawyers call it) is not scheduled until March 2010.
The court will consider all the relevant facts when making decisions such as this: however, long-term ownership of a property by the family of one of a separating couple is unlikely to carry much weight.
For advice on all matters relating to family break-up, contact us.
Partner Note
Grubb v Grubb [2009] EWCA Civ 976.
Reported in Family Law Week, 25 September 2009. See
European Inheritance Law Overhaul Proposed
Owners of properties and other assets abroad will be relieved to hear that the European Union (EU) has brought forward proposals to simplify the administration of estates with a ‘cross-border’ dimension. The EU estimates that there are some 450,000 of these, but with more than 400,000 people in the UK alone said to have foreign property interests, and one in seven marriages in the UK being contracted with someone born abroad, this must surely be an underestimate.
The proposals stipulate that in cross-border cases, the inheritance laws of the state in which the deceased last habitually resided will apply in determining the division of the estate assets, unless the will of the deceased contains an election that the inheritance law of their native country should apply.
The inheritance law in several EU countries is very different from that in the UK and, in particular, many countries require that estates are divided in a certain way. This gives much less flexibility than is available under UK law.
If you own property abroad, it is very important that the inheritance law and tax implications are considered fully and appropriate arrangements made. We can advise you on these issues.
Partner Note
EU announcement, 14 October 2009. See the Solicitors Journal, 27 October 2009 pp 31-2.
Event Does Not Have to be Likely to Justify Claim
A recent case has confirmed that where an injury is sustained which may lead to a later health problem, provisional damages can be awarded even when the likelihood of the future problem is only a possibility, not a probable event. In other words, there is no need to show on a balance of probabilities that the health issue will occur: the mere chance that it will is sufficient to bring a claim.
The case concerned a man who suffered a serious ankle injury in a road traffic accident. One of the long-term implications of the injury and his subsequent medical care was that it might at a future date be necessary to amputate his leg below the knee. It was considered that the probability of the amputation being necessary was approximately two per cent.
When the claimant sought damages, his claim was defended on the basis that, on the balance of probabilities, the amputation would not be necessary. However, the court ruled that the claim was not merely fanciful and provisional damages were due even though the chances of the amputation being necessary were slight.
In such cases, the damages awarded are reduced to reflect the low probability of the occurrence of the event.
Partner Note
Chewings v Williams [2009] All ER (D) 180, 21 August 2009.
Family Court Must Limit Itself to Matters at Hand
It is a cardinal rule in court proceedings in the UK that both parties to a disagreement must have a fair chance to state their side of the argument. This is particularly important in family cases, which are often complex and invariably emotionally charged.
In a recent case, a judge ruled that a mother should not be allowed to instruct an expert to carry out a risk assessment relating to her capacity to look after her young child. This followed a hearing which resulted from the child being admitted to hospital at the age of six months with injuries which were not accidental and which had been sustained when the child was in the care of his parents.
The local authority commenced proceedings to take the boy into its care with a view to his being put up for adoption. His mother denied responsibility for his injuries and requested an expert’s report as to her fitness to care for the boy. The judge considered that there was no realistic possibility that the assessment would be positive and that delay would not be to the benefit of the child.
The child’s mother and father faced criminal charges concerning their treatment of the boy and the judge listed the final care hearing to take place before the outcome of their trial would be known.
The mother appealed, arguing that the judge had closed her mind to any outcome other than placement for adoption and that the mother had been denied the opportunity to put relevant evidence before the court.
The Court of Appeal ruled that the judge had gone too far. Her role was not to decide the outcome of proceedings at that stage and her refusal to allow the mother to present evidence was unfair. The pending criminal proceedings were not a matter for the judge in the family court and she should not have effectively prejudged the outcome of those proceedings.
Partner Note
Re L (a child) sub nom CR v (1) Local Authority and (2) his guardian [2009] EWCA 1008 Civ.
Forced Marriage – One Year On
Since the Forced Marriage (Civil Protection) Act came into force on 25 November 2008, a Forced Marriage Protection Order (FMPO) has been issued in 86 cases. This compares with a predicted total for the first year of 50.
FMPOs were introduced to help prevent forced marriages from occurring or to offer protection to those individuals who have been forced into marriage. The conditions attached to an FMPO will depend on the circumstances of the individual case but can include an order to stop intimidation or to provide details of the whereabouts of a missing person and to return them to the UK or to surrender a passport to prevent someone being taken out of the country. Where there has been a true threat of physical violence, a power of arrest can be attached to an order. A person in contempt of an order may face up to two years’ imprisonment.
Commander Steve Allen, the Association of Chief Police Officers spokesperson on Forced Marriage and Honour Based Violence says, “The new legislation has been one of the most important developments I have seen in this work. Not only does it provide us with a flexible means of protecting vulnerable people but it also sends a message in the clearest possible terms that such abuses are outside the boundaries of acceptable behaviour.”
If you or someone you know is the victim of a forced marriage or is being coerced into a marriage against their will, contact <<CONTACT DETAILS>> for advice.
Government Plans Uninsured Car Blitz
The Department for Transport (DfT) has announced new measures to curb the menace of uninsured drivers, of whom it has recently been estimated there are more than two million in the UK.
Despite the fact that as many as 500 vehicles being driven without insurance are seized daily, and the ability of the police to impose a six-point penalty on anyone caught driving whilst uninsured, it is calculated that in Greater London, Manchester and Liverpool more than 10 per cent of all cars are driven without insurance.
The cost of uninsured drivers adds more then £30 a year to every motor insurance policy and uninsured and untraced drivers injure more than 20,000 people annually and are responsible for the deaths of more than 150 people a year.
At the moment, it is only an offence if someone drives a vehicle without having motor insurance in place. Owners of vehicles that are not used on the roads are not required to insure them. However, the DfT proposes to make it an offence to keep as well as to drive an uninsured vehicle. Vehicles so identified will be required to be insured and, if they are not, will be subject to seizure and destruction. A fine of up to £1,000 will also be levied on the vehicle owner.
Partner Note
Based on information provided by the Motor Insurers’ Bureau, September 2009. Reported variously.
Home Care Charges Deemed Lawful
The 2008 decision by Hammersmith and Fulham Council to start charging for the provision of home care services was not unlawful. So ruled the Court of Appeal after three disabled people challenged the Council’s decision on the grounds that it was in breach of the Disability Discrimination Act 1995 and gender and race equality laws. Their contention was that disabled people and black/black British or Asian/Asian British users and women would be disproportionately affected by the change.
The Council had decided to begin charging for its non-residential home care services under the Health and Social Services and Social Security Adjudications Act 1983. A judicial review was then instigated by the three disabled people to prevent the charges being enforced. The judges found that the Council had carried out a twelve-week consultation on the available options, after which it concluded that the best course of action was to charge for the services rather than to change the eligibility threshold. It was clear that the Council had considered the choices available to it and had not failed to examine each of them fully.
The Court agreed with the Council that its decision had no specific differential adverse effect with regard to disability, gender or ethnic origin. It was held that the Council had not failed specifically to consider the effects on these groups and any difference in treatment was attributable to social factors and was not therefore discriminatory. Women tend to live longer than men and although there were more ethnic minority users of the services, the fact that their earnings were generally lower than those of non-minority users meant that the charges would not have a disproportionately adverse impact on them.
The judges decided unanimously that the appeal had to be dismissed. It was however stated that there was no legal requirement for the introduction by the Council of a three per cent council tax reduction, which was the reason for its inability to continue to provide the free health care. The inevitable consequence of the Council’s decision was going to be either a need to raise the eligibility threshold or to charge for services. Despite the judges’ misgivings, they concluded that in charging for these services the Council was not acting unlawfully.
Partner Note
R (on the application of Domb and others) v Hammersmith and Fulham LBC [2009] EWCA Civ 941.
In Brief
Injunction Against a Twitterer
A recent case saw the first injunction to be served via a social networking site. An unknown individual, who was posing as the political blogger and solicitor Donal Blaney of Griffin Law, was served with a court order to prevent him from continuing under that guise and to require him to reveal his true identity. The injunction, now referred to as ‘Blaney’s Blarny Order’, was groundbreaking due to the fact that it was served via the Twitter website.
The injunction was granted on the basis that the Twitterer had breached Mr Blaney’s copyright. It is understood that the unknown Twitterer contacted Donal Blaney two days after the injunction was served and a four-figure sum was agreed in settlement.
In Brief
No More Supremes
Following the creation of the new Supreme Court on 1 October 2009, solicitors are no longer ‘Solicitors of the Supreme Court’ but are now ‘Solicitors of the Senior Courts of England and Wales’.
The former Supreme Court of England and Wales was made up of the Crown Court, the High Court and the Court of Appeal. Now that the Supreme Court has replaced the House of Lords as the ultimate court of appeal, the names of the other courts have been revised.
In Brief
Property – Slow Improvement in Market Conditions
Lending for residential property purchases has increased significantly in recent months – the July figure of £16 billion showing a 26 per cent rise over June. August and September have both shown gross mortgage lending of about £12.5 billion, which, whilst a considerable improvement on the beginning of the year, is still well below levels seen a couple of years ago: in 2007, mortgage lending averaged over £30 billion per month.
House prices have recently shown modest rises, helped by the fact that there has been an increase in demand at the lower end of the market, with more than a third of house purchases being made by first-time buyers.
Partner Note
Sources: Council of Mortgage Lenders, Nationwide Building Society.
These were still latest figures as at 19 December 2009.
Parents Face Massive Costs After Bullying Action Withdrawn
A man who sued his former school for damages, alleging that it was negligent for not preventing him from being bullied as a child, has seen the court award a ‘third party costs order’ against his parents in the sum of £1 million.
A third party costs order is an order by the court which makes a third party (i.e. someone who is not party to the formal proceedings) liable for legal costs should they be awarded. Such orders are made where the litigation is being pursued by a person on behalf of someone else or where the third party is closely involved with the outcome of the proceedings, such as by funding them. They are designed to protect the position of the other side in the dispute.
In the case in point, the claimant, an unemployed 25-year-old graduate, dropped his case against his former school, which he had attended for eight years, two weeks into a legal dispute that had by then cost the school more than £250,000 in legal expenses.
Says <<CONTACT DETAILS>>, “In this case the young man had insufficient assets with which to pay the legal costs of the school. However, the third party costs order made against his parents meant that the school would have its legal costs met.”
In the British system of justice, the loser normally pays the costs of the winner and third party costs orders, although fairly rare, are a protection for litigants to help ensure that if they are successful in court, they do not find they are still out of pocket when victorious against someone who has no means themselves but whose own costs are being funded by a third party.
Partner Note
Thomson v Berkhamsted Collegiate School [2009] EWHC 2374 (QB).
Supreme Court Rules on Overdraft Charges
One of the first decisions of the new Supreme Court (which in October 2009 replaced the House of Lords as the highest court in the land) came as a disappointment to many bank customers who had suffered high levels of charges after they exceeded agreed overdraft limits.
The Court accepted the banks’ argument that the British tradition of free ‘in credit’ banking (rare elsewhere in the world) is only possible because of charges levied on those who go overdrawn.
The decision means that tens of thousands of customers who had pending applications for refunds of charges will not now receive them.
For private customers who do not go overdrawn on their current accounts, the decision may well produce the welcome result that free banking will continue.
The Office of Fair Trading (OFT) has decided not to pursue further its investigation into the fairness of bank overdraft charges under the Unfair Terms in Consumer Contract Regulations. Whilst it still has concerns about the way banks operate current accounts, the OFT has conceded that a challenge to the banks on that basis has little chance of success.
The banks have recently announced a plan to phase out cheques: they already charge business customers up to 65p more for writing a cheque than for paying a bill electronically. Cheques themselves are scheduled to be consigned to history in October 2018, according to a recent announcement by the clearing banks.
Partner Note
1. The British Banking Association has published a fact sheet on the 25 November ruling of the Supreme Court. See
2. Reported variously, 17 December 2009.
Time to Brush Up on Consumer Rights
With the winter holiday season sales in full swing, now is a good time for consumers to remember that UK consumer protection legislation is robust, giving them substantial rights and imposing significant obligations on traders. Indeed, in some cases the actions of a vendor may be sufficient to constitute an ‘unfair commercial practice’ (UCP). UK law prohibits UCPs and, in many cases, they represent a breach of the criminal law.
What then is a UCP?
A UCP is any commercial act, omission or course of conduct, representation or communication which:
  • does not meet the usual standards of professional diligence (which means it is not in good faith and in accordance with honest market practice); and
  • does or is likely to distort materially the economic behaviour of an average consumer (which means it causes the consumer to behave in a way they would not if they were properly informed. This usually means that the customer is persuaded by the presence of the UCP to buy something they otherwise would not).
A term which is misleading (by inclusion or omission) may be unfair – for example by the inclusion of false or deceptive information.
In certain cases, unfair contract terms can be UCPs. Unfair contract terms are always unenforceable.
Where UCPs are carried out knowingly or recklessly and distort or are likely to distort consumer behaviour or involve misleading acts or omissions, this is a breach of the law which may lead on conviction to a fine of up to £5,000 and/or a sentence of up to two years’ imprisonment.
Consumers have rights. If you have been misled by a rogue trader, the law can come to your aid. Contact <<CONTACT DETAILS>> if you would like advice on your individual circumstances.
Partner Note
The Unfair Terms in Consumer Contracts Regulations 1999 can be found at
The Unfair Contract Terms Act 1997 can be found at
Web Version of Print Article Defamatory
Publication on the Internet of a defamatory article previously published in a print newspaper could render the publisher open to legal action even if the print version was acceptable. This was the surprising conclusion in a recent case against the owners of The Times newspaper.
The case concerned an investigation into alleged police corruption conducted by Times journalists. An article based on the investigation was published in June 2006. A subsequent police inquiry into the allegations found no evidence of any wrongdoing.
The police officer mentioned in the article commenced proceedings for libel in May 2007, although the results of the police inquiry were not known until September 2007. The officer cited defamatory remarks made in the print and web versions of the article. In defence, the Times claimed ‘qualified privilege’ and ‘public interest’.
Qualified privilege means that when any form of legal proceedings such as court cases or public investigations are taking place, the press are entitled to report those proceedings, albeit with certain restrictions. The press may also claim that publication of allegations made against police and other public officials is in the public interest.

Both claims were accepted by the court in respect of the print version of the article. However, the web version should have been removed or amended after the results of the police inquiry were made available.
Times Newspapers offered to publish a qualification to the web article but the wording suggested was not acceptable to the police officer. Failure to agree on the wording did not help Times Newspapers in its case. The court held that it was its job to make good the article, regardless of the failure to agree on the wording.
“This judgment is further proof that web content must adhere to the same strict rules that protect the individual from libellous remarks in print publications,” says <<CONTACT DETAILS>>. “It should be remembered that, whereas a print article may be thrown away, web content tends to stay in place indefinitely, sometimes long after the information has become outdated.”
Partner Note
Queen’s Bench: Flood v Times Newspapers. See and
When is an Agreement Not an Agreement? – When it is With The Tax Man
Getting your tax right can sometimes be complex and it is often the case that when HM Revenue and Customs (HMRC) investigate a taxpayer, they find that there are irregularities. When these result in an underpayment of tax, HMRC will normally levy interest and/or a penalty on the taxpayer.
HMRC have discretion as to the amount of the penalty they can levy and where a taxpayer is fully cooperative and the underpayment is not regarded as an attempt to evade tax, a penalty may be waived altogether.
In a recent case, a man who controlled a partnership which had under-declared profits some years earlier faced an additional tax charge (plus statutory interest) of £122,000. He intended to appeal against HMRC’s decision, but wrote to the tax inspector prior to the court hearing making the following proposal: he would pay the additional tax, interest on the underpaid tax at the statutory rate and HMRC’s legal costs and, in consideration for his so doing, HMRC would withdraw its amendments to the relevant tax returns. This would remove the tax-geared penalty. The offer was made in the form of a formal offer to pay under Part 36 of the Civil Procedure Rules.
The man’s tax inspector wrote back, indicating that his offer would be accepted ‘without prejudice to any penalty determination which may follow hereafter’ and the taxpayer considered that once he had paid the agreed sum, that would be the end of the matter. However, a 70 per cent (towards the upper end of the scale of penalties which are normally levied) penalty notice (£54,000) followed.

The taxpayer went to court to contest HMRC’s right to levy the penalty – and lost. The offer had not been sufficiently clear as regards the settlement of penalties and had not specifically dealt with them. Accordingly, HMRC were not bound to accept his offer as one which would remove their right to levy a tax-geared penalty.
Says <<CONTACT DETAILS>>, “If you are in dispute with regulatory or tax authorities, we can help you reach an appropriate settlement.”
Partner Note
Stockler v HMRC [2009] EWHC 2306 (Ch), 22 September 2009. See
Who Gets the Family Home?
Family break-up is always complicated and when there is a property involved, things can get very complex indeed.
In principle, when a couple are cohabiting (not married or in a civil partnership) the property belongs as of right to whoever is shown on the deeds as the owner.
Where there are minor children, the court will put their interests first and will normally ensure that their accommodation needs are met until they reach the age of majority. The most common circumstance in which a specific arrangement is necessary to secure the accommodation needs of minor children is when the mother and children live in a property which is owned by the father. Such arrangements may well involve a settlement into trust with the trust capital (the property) reverting to the father when the youngest child reaches 18.
In some circumstances, the courts will conclude that there is a ‘constructive trust’, which arises as a result of the arrangements made by the couple. In such cases, it is necessary for the person claiming an interest in the property which is not the same as a legal interest to demonstrate this.
The courts in such cases will consider the intentions of the parties involved. When one party claims a share in the property, the court will first ask whether there was the intention to share the beneficial interest in the property. If the answer to that question is ‘yes’, then the court will decide, on the basis of the evidence, what the nature and proportions of the couple’s shares should be. Note that it must also be shown that the claimant relied on the common intention to own the property jointly to his or her detriment.
Factors which will help substantiate a claim to a beneficial interest in a property in these circumstances will include:
  • making a contribution to the costs of purchase;
  • making a contribution to the mortgage, rates etc.;
  • making a non-financial contribution (such as working to renovate, improve or maintain the property); and
  • making an indirect financial contribution (e.g. paying other household bills so that the other partner can pay the mortgage etc.).
If you are facing a family break-up and want to know what your legal rights are, contact <<CONTACT DETAILS>>.
Without Prejudice Communications Can Be Admissible
The phrase ‘without prejudice’ is commonly used where parties in a dispute wish to keep communications relating to its settlement from being admissible as evidence should negotiations fail and the matter end up in court.
The principal use of without prejudice communications is to encourage parties to settle their dispute out of court, whether it be a dispute between neighbours or over a commercial contract.  It provides a useful way for them to discuss the issues and to see if an agreement can be reached. If this does not prove possible and the case proceeds to court, the parties to the dispute will want to know that the earlier without prejudice discussions cannot be relied on as evidence in court. In many cases, without prejudice communications will not be admissible but a recent case has highlighted the need to be careful not to assume that the phrase will provide blanket cover that will always prevent such communications being admissible.
The case in point concerned two companies involved in a dispute over an invoice. They had undertaken extensive without prejudice negotiations prior to agreeing to a settlement in writing. However, one of the companies subsequently claimed that the other had defaulted on the agreement and the matter went to court. The High Court ruled that whilst without prejudice negotiations that do not lead to agreement will not normally be admissible as evidence in court, where a settlement is reached but there is subsequent litigation, adducing the communications between the parties as evidence in court, as if they had not been made on a without prejudice basis, may be appropriate in order to ascertain the true intentions of the parties concerned.
The judge said that the principle that without prejudice communications aimed at settling a dispute cannot be used in evidence in any subsequent legal proceedings is not an absolute rule but a matter of public policy. Where legal action is taken after a settlement has been reached and it would assist the court in reaching its decision, the court has the discretion to decide whether without prejudice communications should be admissible, depending upon the facts of the individual case.
If you are involved in a dispute of any kind, we can assist you in negotiating a settlement.
Partner Note
Reported variously. See, for example
Woman Let Off Credit Card Debt
A woman who owed a credit card company more than £8,000 has been excused from repaying her debt after a court ruled that the ‘secret’ commission paid to the credit card company by the company providing the payment protection insurance constituted an unfair contract term. As a result, the credit card agreement breached the Consumer Credit Act 1974.
The decision has been described as a ‘bonanza for borrowers’ that will allow thousands to avoid repayment of credit card debts, but the reality is less beneficial. The credit card company was unable to provide the court with a copy of the credit agreement originally signed by the woman, which must surely be an unusual occurrence. Had this been available, it is quite likely that the decision would have gone in the credit card company’s favour.
Says <<CONTACT DETAILS>>, “Unfair contracts are unenforceable. If you have problems with consumer debt or are being pursued for payment under a contract that is unfair or which you entered into under pressure from the provider, we may be able to help.”
Partner Note
MBNA v Thorius, 1 October 2009. Reported widely.
You Need Protection (But Don’t Ask the Council)
It might reasonably be assumed that if you are a council tenant with neighbours who are likely to use violence against you and you inform your landlord of this fact, the council has some degree of responsibility for making sure you are protected.
However, following two recent cases, one in the Court of Appeal and one in the House of Lords, this appears conclusively not to be the case.
In each case, the council landlord was made aware of the violent tendencies of neighbours and in each case did nothing. In each case, the tenant who complained was attacked and subsequently sued the council. Both tenants lost.
In principle, no one owes anyone else a legal duty of care to protect them against the criminal acts of a third party. You cannot normally rely on a third party, such as your council or the police, to protect you from violent neighbours, although you can try to persuade the council to apply for an anti-social behaviour order or similar order.
Partner Note
Mitchell v Glasgow CC [2009] UKHL 11.
X&Y v Hounslow DC [2009] EWCA Civ 286.
You’re an Heir – Now Sign This!
Until the recent publicity afforded by television shows on the subject, many people might not have realised that ‘heir tracing’ companies exist, let alone that they research ‘promising’ estates by looking at public records and then contact potential beneficiaries of those estates.
The prospect of obtaining a windfall following a knock on the door by such a firm makes many people only too glad to sign the contract offered, but quite often these can involve very considerable sums being paid to the heir locators – a figure of 25 per cent of the inheritance is not uncommon.
It is often the case that your entitlement to an unexpected legacy can be achieved more economically. Many such approaches result from the firm researching into the background of substantial unclaimed estates and much of the work that is done can be done by an ‘amateur’ (especially one with an interest in genealogy) without great expense.
Here are some things to think about if you are approached by such a firm. Often, the details they give you will be scanty and will not include the likely value of the inheritance. The withholding of critical information in order to make you sign the contract may make their agreement with you unenforceable.
Firstly, try to establish who the deceased is, your relationship to them and the value of the estate. The latter can normally be found with a little research, as wills are public documents. The more distantly related to them you are and the more other possible beneficiaries, the less you are likely to receive.
Do not rush! If the visit arises because of an unclaimed estate, the estate will not pass irrevocably to the Crown until 30 years after the death of the testator, so there is normally plenty of time. The Treasury Solicitor’s website contains details of unclaimed estates (, which is a good starting place for your research.
If the approach arises through a solicitor, always ask the name of the solicitor.
We can help you understand your rights and negotiate with ‘heir hunters’. Contact <<CONTACT DETAILS>> for advice.
Partner Note
Title Research released a guide on this in autumn 2009.

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