Case Summaries

The following case summaries have been anonymised where appropriate and describe matters that I have been involved in where the case was of some interest or where the outcome was interesting.  The most recent are at the top.

A v S - Nuneaton County Court, January 2021

This is the another matter in the dispute between A and S which was previously dealt with in 2019 and 2020.   In late 2020 S became aware of a further judgment against him, this time for a substantial sum of money, and promptly applied for that judgment to also be set aside. No copy of the judgment or of the claim was available until shortly before the hearing but the court file had the name of the Defendant listed as "MR {firstname middlename}
THE "house name}" (where I have removed the actual names used).

The reason that S could not have found this judgment, which was entered at around the same date as those previously dealt with, was that the name on the judgment was not his name.   As such, the judgment was arguably unenforceable in any event although A had given the enforcement agents S's details to work on.

Held: The judgment was unenforceable due to the uncorrected name error for the Defendant and in any event should be set aside as there was no evidence that the Claimant had made sufficient effort to locate the Defendant's proper address for service given that he knew that he was not living at the address given on the Claim Form. Judgment set aside and Claimant to pay Defendant's costs.

A v S - Warwick County Court, December 2020

This is a further matter in the long-running dispute which I first dealt with in December 2019.  By early 2020 S had filed a Defence and the matter went before a District Judge for a costs and case management hearing ("CCMC"). Shortly after the CCMC  A discontinued his claims in all seven matters.

Then, in late 2020, A made an application to set aside the judgment of the District Judge in December 2019.

Needless to say, the court found that the application was totally without merit and an abuse of process.  A was ordered to pay S's costs of and occasioned by the application.

A v S - Warwick County Court, December 2019

A and S are brothers. In 2012 S moved abroad and in 2013 A&S were both beneficiaries of the sale of a property.  However, in 2014 and 2015 A filed seven claims against S using the Money Claim On-Line service giving the address of the property which had been sold as S's address for service.  Judgments were entered in default shortly afterwards as S was unaware of the claims.

S became aware of the claims in late September 2019 and immediately sought advice from a solicitor who promptly filed an application to set the judgments aside.  A responded that he had merely followed the rules by using S's last known address pursuant to CPR r.6.9(2).

I prepared a skeleton argument dealing with the (abject) failure of A to deal with CPR r.6.9(3) and (4) which requires a person using the "last known address" to make reasonable enquiries if they know that the person is not living there.  The skeleton also addressed the now confused position regarding applications made under CPR r.13.3 following Goldcrest Distribution Ltd v McCole [2016] EWHC 1571 (Ch) which provided that the Denton test should be applied, which is different from the test set out in the rule; and the decision of HHJ Mackie QC in the Mercantile Court in Barons Finance Ltd & anr v Makanju [2013] EWHC 153 (QB) in which the court found that the principle of certainty in litigation could be set aside where there was an underlying injustice.  In Makanju the injustice was that the lender seeking possession of his property had never held a consumer credit licence.  In the instant case the injustice was the failure to comply with the rules of service.

At the hearing A admitted that he had known, when he filed the claims, that S was not living at the address that he had given on the claim forms for service.

The District Judge held that service was defective as CPR r.6.9(3) and (4) had not been followed.  The judgments were set aside and the Claimant ordered to pay the Defendant's costs of and occasioned by the application.  A complained that he had not known where his brother was living but the judge said that there was an alternative remedy which was to apply to the court for alternative service and that the correspondence produced by A showed that there had been e-mail communication between the brothers.  He had not done so.

C v G & G - Central London County Court, June 2018, December 2018, March
2019 & November 2019

This case had been live since early 2017.  The tenant of a commercial property in East London applied for a new lease.  While that application was proceeding through the court system the landlord evicted her purporting to forfeit the lease.  A colleague of mine
persuaded the court in 2017 that a new lease should be granted.  In the summer of 2018 I acted for the tenant in proceedings setting the terms of the new lease and in her application

Several costs orders were made against the landlords but nothing was paid.  The terms of the new lease were set in more or less standard form but the court ordered that the term of the lease preventing the tenant from setting off rent from any other monies owed to her by the landlords should have no effect so long as costs and/or damages owed by the landlords to the tenant remained unpaid.

In the event the court was not satisfied with the business records of the tenant and could not determine any loss of profit that she had suffered as a result. However, the court did accept that the landlords had behaved very badly and unlawfully and made an award of damages for unlawful eviction.

In a final hearing to assess costs of various hearings where costs had been reserved I also succeeded in persuading the court that the earlier order preventing the invocation of the no set-off clause in the lease (while the landlords had debts outstanding to the tenant) should be extended, using the court's post-judgment powers under CPR r.40.8A, to include the clause permitting the landlord to invoke a break clause after five years, which might otherwise have resulted in the landlords winning (by regaining the property) even after they
had lost at every stage of the proceedings.

London Borough of Newham v Homeview Residential Ltd - Thames
Magistrates' Court, January 2019

I acted for the Defendant company which lets residential properties to tenants.  The prosecution was brought under s.224(3) Town and Country Planning Act 1990 on the basis that the Defendant company had placed advertisement boards on three properties (so three charges) which did not have planning consent or deemed consent.  The prosecuting authority claimed that the only boards that could be used by agents outside of a property were those with "For Sale" or "To Let".  The authority took exception to the words "Guaranteed Rent" on the Defendant's boards.

Deemed permission is defined in the The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (SI 2007 No. 783) and in particular Part 1 of Schedule 3 to the regulations defines classes of advertisements which have deemed planning consent.  Class 3A covers "An advertisement relating to the sale or letting, for residential, agricultural, industrial or commercial use or for development for such use, of the land or
premises on which it is displayed." with certain limitations which were not the basis of the prosecution.

Making a half-time submission of no case to answer I argued that the term "relating to the sale or letting" was so wide as to include (or not preclude) the words used on the Defendant's boards.  Moreover, there was no evidence that the Act or the Regulations precluded the wording used or required any specific wording.

M v R & A (deceased) - Central London County Court, March 2018

This case involved the same client as an earlier case concerning the owner of a vehicle.  The Claimant in this case was the former girlfriend of the deceased.  The case was complicated because, first, the court office had erred in permitting a claim against a deceased person to proceed; and second because the 'advocate' on behalf of the Claimant was not legally qualified.  After submissions his role was reduced to advisory and the Claimant was required to make her own submissions.

The hearing proceeded as a show-cause hearing whereupon the Claimant was required to show why the matter should not be struck out.  The claim against the Second Defendant was struck out but, given the court office error, the judge did not feel it appropriate to do so with the whole claim.  The judge gave detailed directions and an unless order and declared that the claim as it stood was misconceived and totally without merit.  If the Claimant failed to comply with the directions, she would have to pay the First Defendant's costs.  The Claimant sought permission to appeal and was refused.

Commissioner of Police for the Metropolis v M & R - Central London County
Court, February 2018

This was a curious case brought by the police in order to get the assistance of the court in determining the ownership of a vehicle seized as part of a murder enquiry.  In the event, the sad death was found not to be a murder and the enquiry was concluded but then two parties claimed ownership of the vehicle.  I acted for the Second Defendant who was the spouse of the deceased.  The First Defendant claimed to have purchased the vehicle shortly before the owner had died and said that he had paid for it in cash.

I successfully argued that as the First Defendant spoke next to no English, and his written witness statement was written in English with no interpreter's certification, his witness evidence should not be admitted relying on Barton v Wright Hassall LLP [2018] UKSC 12.  The judge agreed that the witness statement should not be admitted and that there were no special rules in favour of litigants in person, as the First Defendant claimed to be.

After hearing evidence, the judge was critical of both Defendants but came down on the side of the Second Defendant because her case was supported by a document issued by the DVLA whereas the First Defendant, who claimed to have been a car dealer, had kept no or no proper records and had done nothing to confirm the identity of the seller of the vehicle or to obtain correct documentation.  Declaratory relief was granted and the First Defendant
was ordered to pay the Second Defendant's costs.

H & S v R & R - Oxford County Court, February 2018

This was a claim for specific performance under a contract.  The dispute arose over a a dog breeder refusing to properly authenticate the breeding to the Kennel Club.  The clients had good documentation which supported their case.  I acted for the Claimants under the Bar Public Access Scheme.  I originally advised the clients on merits and procedure and they served a letter before action and filed the claim themselves and dealt with the court under my advice.

Sadly the progress of the claim was hampered by a significant misunderstanding in the court office about whether a claim for specific performance could be filed at the county court under Part 7 of the CPR.  This caused a delay of some weeks before the claim was issued. The Defendants did everything at the last minute and threatened to counter-claim in defamation should the claim proceed.

At court, the Defendants failed to attend but instructed counsel, again at the last minute.  The trial, in the event, lasted most of the day after a late start due to Defendants' counsel attending late.  The Claimants were cross-examined intensively by counsel for the
Defendants but nevertheless the judge found that he preferred the evidence of the Claimants and that he had doubts about the copy of the contract submitted by the Defendants and only signed by them.  The Claimants succeeded and also secured recovery of some of their costs (fixed costs under the Small Claims Track rules) but their main objective which was an order for specific performance was achieved.

Elleray v Bourne & Hanning - Upper Tribunal (Lands Chamber), December

I acted for the Respondents in this action brought by a purchaser of a Park Home.  The claim failed at the First Tier Tribunal but the Applicant sought to appeal and the appeal was heard by the Deputy President of the Upper Tribunal (Lands Chamber). Judgment has been published on BAILII here. [1]

This dispute revolved around the calculation of commission to be paid to the site owner when a Park Home is sold or transferred.  In this case the Park Home was sold to the Applicant by the Respondents who were acting as executrices of the estate of their late
father.  The site owner claimed that the commission (which is not specified but cannot exceed 10% of the purchase price by law) should be calculated "out of the sale price" whereas the Respondents contended that 10% "of the sale price" meant that the sale price had to have 10% added to it to make up the purchase monies.

The difference between these figures amounts to about 10% of the commission value (roughly speaking) so if the site manager was correct then he would be expecting his commission figure to increase by approximately 10% over the figure that he was paid.

The Upper Tribunal found that while the FTT had erred in some respects, the appeal should be dismissed.  It also found that the regulations and other documentation was very confusing and recommended that these be tidied up.

TM & SM v SB & DC (as Trustee in Bankruptcy for SB) - High Court, November 2017

First Claimant appealed the decision of the Circuit Judge at the Central London County Court (October 2016 - see below) on several grounds.  The original trial had been heard in October 2016 over three days with judgment being handed down at the end of that week.
The judgment was thoroughly in favour of the Trustee's position and finding that the evidence of the Claimants and of the First Defendant had been unreliable.

The Grounds of Appeal, originally advanced on behalf of both Claimants but only pursued by the First Claimant, complained that the judge had misdirected himself on the evidence and on the law although these were very unspecific allegations.  Considerable delay was
added to the appeal because the County Court at Central London took from 28.10.16 to 10.03.17 to produce a sealed order despite an agreed note of order having been filed by counsel on the day when judgment was handed down.

Following oral argument on 17.11.17 the judge in the High Court handed down a detailed judgment on 30.11.17 in which he agreed wholly with the arguments advanced on behalf of the Trustee, in particular that the Appellant should have produced a transcript of the
proceedings, rather than just of the judgment, if he was to pursue complaints about the judge's approach to evidence.  That said the judge, Mr Justice Warren, found that he could not accept that the judge below had made any error of law or had misdirected himself on the evidence and refused permission to appeal further.  That should end the matter.

A Taxi Company v A Cyclist - Central London County Court, November 2017

I acted for the Defendant cyclist at short notice in a case which was listed for a Fast Track trial.  In fact the Claimant had made an application to strike out the Defendant's defence and for summary judgment to be dealt with as a preliminary issue.

The case arose from an incident in the early hours of the morning when the cyclist had crossed the path of the taxi and the two had collided, leaving the cyclist in hospital with significant injuries and the taxi with a damaged bonnet and windscreen.

Surprisingly the cyclist did not sue the taxi company but, rather, did his best to return to work and carry on with his life.  Eventually the taxi company decided to sue the cyclist for the damage to their taxi.  So the Claimant was the taxi company even though the most
significant injuries were to the Defendant cyclist.  The cyclist was originally sued in the Bulk Centre but the claim was not properly served as his address had changed.  Judgment was entered and later set aside.  The claim was reinstated in the County Court and the Defendant counter-claimed for his injuries.

The evidence from the in-cab video camera showed that the taxi was travelling at 26-27mph and it was accepted that the speed limit in force was 20mph.

I prepared a detailed skeleton argument dealing with the application to strike out.  The application was made very late in the day and on a somewhat spurious basis.  There were good reasons why the matter should proceed to trial, not least being the fact that the Defendant was still suffering as a result of the collision.  On that latter point, were the matter to proceed, as I argued it should, I submitted that any trial today should be limited to liability as the Defendant cyclist was still suffering and the medical evidence was therefore incomplete.

After hearing evidence from the Defendant, the Claimant's taxi driver not attending, the judge heard arguments and concluded in a detailed judgment that in her view, while it was clear that the taxi was breaking the speed limit, the taxi nevertheless had the right of way on the road on which he was travelling.  The cyclist crossed his path and could have waited.  She determined that the cylclst was 70% responsible for the collision.  She awarded damages to the taxi company (which had submitted repair invoices) but adjourned consideration of damages for the cyclist for new medical evidence to be produced.

After the trial, new medical evidence was produced dealing with the remaining injuries and I was instructed to prepare an advice on quantum.  The matter of quantum was later settled out of court between the parties.

C v B - Possession Claim - Lambeth County Court, May 2017

I acted for the Defendant in the second hearing of this possession claim.  The claim had initially commenced under s.21 Housing Act 1988 with the landlord seeking rent arrears and possession of the property.  The Defendant issued a defence and counterclaim alleging
fundamental breach of the tenancy agreement by the landlord, that the rent had been over-paid due to a specific clause in the tenancy agreement and some disrepair.  The Claimant was granted permission to re-plead and the revised claim was to proceed under the
accelerated possession rules (the claim for arrears had been dropped) and was therefore not dependent on the success or otherwise of the counterclaim.

I argued that there was an error in the service of the s.21 notice which meant that it was invalid.  Specifically the Claimant said that the s.21 notice had been served "by delivering it or leaving it at a permitted place".  The Civil Procedure Rules (CPR r. 6.26) provide that
when this method of service is used the document is deemed to be served on the same day as it is left if that happens before 16:30 or the next business day if it is left after that time.  Solicitors acting for the Claimant had omitted to put the time of service on the certificate and therefore the court had to give the Defendant the benefit of the doubt given the draconian effect of s.21 and therefore the document was deemed served on the following Monday.  As a result, the Defendant had been given less than the statutory two months' notice and the notice was invalid.  The Claim was struck out.

There is a lesson for practitioners in this case as the N215 Certificate of Service form does not contain provision for the time of service using this method.  It was always open to the Claimant's solicitors to add the time in manuscript on the form but they failed to do so.

The counterclaim proceeds.

TM & SM v SB & DC (as Trustee in Bankruptcy for SB) - Central London County Court, October 2016

Derails to follow