Introducing the new Attorney General

 

Following the excitement of the long election campaign and result, I wanted to reflect on one very promising ministerial appointment. This concerns new Attorney General, Richard Hermer KC.

But first, lets take a trip back in time to an earlier post about a new Attorney General. This was back in February 2020 when I wrote about the appointment of a ‘relatively unknown barrister’ called Suella Braverman. Back then, I expressed alarm about her strident views and apparent lack of understanding. A week or so before her appointment she said -  “…our Parliament must retrieve power ceded to another place – the courts”. She also said - “Questions that fell hitherto exclusively within the prerogative of elected Ministers have yielded to judicial activism”. So this person was hardly fan of the judiciary! Four and a half years is a long time.

I wrote back then –

‘This feels more like an appointment by the PM to get one back on the judges who had the cheek to declare that his unlawful prorogation was….unlawful. The Conservative Home blog reads a bit like a job application’

More recently she has advocated for the UK to leave the European Convention on Human Rights.

Steve Cornforth Consultancy: Introducing our New Attorney General and some alarming misunderstandings

This was one of many appointments under the last government that appeared to be based on political preference or personal reward.

And so to the appointment of Richard Hermer KC – what a contrast. There is no doubt that he is a big hitter. Many lawyers who find themselves in government are awarded the honorary title of KC, to add gravitas to the title. Our new attorney has been a real (!) KC* since 2009. As a barrister he worked out of Doughty Street Chambers and then Matrix Chambers. He is also a Deputy High Court Judge.

He acted for many victims of the Grenfell Tower disaster and led the team that achieved the settlement of the legal claims. He has been involved in high profile environmental claims including the well publicised case of of Ella Kissi Debrah concerning a death linked to air pollution. I don’t propose to turn this post into a CV(!)** 

The point is that he is a serious barrister, committed to justice and to the rule of law. He is also an expert in Public Law and Human Rights which a huge relief to us all…

After the last few years, this comes as a very welcome breath of fresh air!

Let’s hope there are many more to come.

*originally QC

**Richard Hermer KC - Matrix Chambers (matrixlaw.co.uk)

Small Claims - when ignoring the 'normal' becomes the norm!

 

Lawyers who act for tenant’s in housing conditions cases need to be aware of and to understand the rules on allocation. Special rules apply because of the difficult nature of the cases, which normally involve an application for Specific Performance – an equitable remedy.

The rule is in effect that if you have a claim for a tenant where you are seeking an order for work to be done, the case will be allocated to the fast track if the estimated cost of the work is over £1k or if less than £1k, that the value of the damages claim exceeds £1k. In fact, what the rule says is that will the normal allocation. So it is not automatic. This is leading to some very questionable allocation decisions.

Despite the clear wording of the rule many courts are allocating to the small claims track anyway. The argument is that the cases are straightforward, in fact they aren’t. Other reasons given are that the value of the repair is only above the line by a bit (!). It was reported to me in one case that the judge observed that the court was familiar with dealing with these cases.

This is all very alarming and out of step with the rule itself, the practice direction and even some comments from the Court of Appeal.

Let’s start by looking at PD16 (1) –

 (1) Where the court is to decide whether to allocate to the fast track a claim for which the normal track is the fast track, it will allocate the claim to the fast track unless it believes that it cannot be dealt with justly on that track.

 

So, 26.9 says that the fast track will be the normal allocation. The Practice direction goes on to say that the court will allocate to the fast track – ‘unless it believes that it cannot be dealt with justly on that track’.

 

The main impact of Small Claims Court allocation is to deprive the tenant of legal representation. Recoverable costs are limited to £260 plus a payment of £750 for any expert report. In reality it means that an ordinary tenant of modest means is not represented. On which planet is it reasonable to say that the claim cannot be dealt with justly unless the claimant is deprived of the right to legal representation?

 

Housing Conditions cases are not straightforward. In the case of Birmingham City Council v Lee [2008] EWCA Civ 891, Hughes LJ observed –

 

‘It was accepted before us that, although of course the protocol is meant to be open for  operation by tenants in person if they wish to act alone, it was reasonably to be expected that many tenants would not be in a position to do so and would need legal help. For a layman, the requirements of the protocol are quite complex. The terms of the protocol make it clear that it anticipates that the tenant may incur legal costs in operating  it.’ (My emphasis)

This statement is not binding as the Birmingham case was about costs, but the principle is clear. Many, in fact most, tenants require legal help. Courts should take note of this comment from a senior appeal court. In the same case Hughes LJ also said in relation to Rule 26 –

The effect of that is: providing there is a claim for specific performance, a tenant's claim in a disrepair case will be a fast track case if either the cost of repairs or the consequential damages claim exceeds £1000. If, on the other hand, there is no specific performance claim, the ordinary rule in CPR 26.6 (3) applies and the claim will only be a fast track claim if its overall value exceeds £5000. (Now £10,000) (Para 7)

 

This is language similar to the practice direction 16. If the claim satisfies the criteria for the fast track, it will be allocated accordingly. This again is persuasive only. But if it good enough for the Court of Appeal, it is good enough for a District Judge on allocation.

 

For all of these reasons, I would strongly advise tenants’ advisers to oppose all attempts to dismiss perfectly valid cases as small claims. They are difficult enough. There can be few things worse than living in poor conditions. Tenants must be able to present their cases and to have access to legal assistance.

 

 

 

 

 

Welcome to my new site

Steve Cornforth Consultancy

Housing Law, Practice and Procedure and Costs

About me - I was a practicing solicitor from 1980 - 2017. I was Senior Partner of an established Liverpool firm. In 2017 I set up the Steve Cornforth Consultancy. I now provide training and consultancy to lawyers, mainly in housing cases but also in procedure and costs. From July 2024 I am officially a former solicitor! I may be out of practice but am as busy as ever.

What was once, and still is, my blog page is now the main web page for the Steve Cornforth Consultancy

This is where I will be posting news about new events, updates and of course still ranting after all these years!

Housing Conditions and the Courts

Webinar by ZOOM

Tuesday 25th June 2024 12.00 – 13.30

 

£90 per firm with no limit on numbers

I am seeing an increasing number of cases where it is becoming necessary to issue proceedings. In this session we will look at practice and procedure around issuing proceedings including reviewing pleadings and replies, Defaulting defendants, DQs, Appealing directions orders etc

Issuing proceedings – which court, Claim Form essentials, fees

Pleadings – POC essentials, Drafting POCs, Reviewing and responding to Defence,

Replies - when and how

DQs – effective completion, allocation orders, preparing for allocation hearing and appeals

Time limits – Denton and other dangers

Costs

About Rwanda, Courts and a chin related injury!

 

I am wondering if I can pursue a personal injury claim against the Prime Minister. This is for injuries suffered by my chin as it hit the floor this morning during his excruciating speech about Rwanda.

 Enough has been said about the scheme itself. What caused my facial injury was this –

‘To deal with any legal cases quickly and decisively, the judiciary have made available 25 courtrooms and identified 150 judges who could provide over 5,000 sitting days.’

Are we allowed to ask which member of the judiciary has achieved this miracle?

The court system in this country is in chaos. In April 2023 the Law Society reported –

‘The continuing lack of progress to reduce the backlog makes it unlikely the government will achieve its target of cutting the number of cases waiting to come to court to 53,000 by March 2025’

Government set to miss target to reduce courts backlog | The Law Society

Some victims of crime wait many years for their case to come to trial. A few weeks ago, the Senior Presiding judge, Lord Justice Edis said that there were 3355 rape cases awaiting trial and that 6% of these cases were ‘very old’.

He described this as –

"an unacceptable state of affairs from the point of view of the complainants, the witnesses, the defendants, and justice generally",

Nearly 200 'very old' rape case trials could begin by end of July after years of delays | UK News | Sky News

We can add to this those caught up in other area of criminal work. It is a shambles. 

And it is not a new problem. As long ago as 2019 I wrote about the number of courts that were sitting empty die to a lack of resources –

Steve Cornforth Blog: Justice on the verge of collapse - (let's pile some more on top) (thestevecornforthblog.blogspot.com)

And of course there are the family and civil courts!

And then today we hear that we suddenly have 5000 sitting days available – not to give closure to the victims but to enable the beleaguered Prime Minister to get some planes off the ground. Where have they come from? Where they there all time warming the bench like a surplus Man City player? Or did the magic money tree come up with the goods?

Enough really is enough.

We have a Lord Chancellor – Alex Chalk MP. He has sworn an oath as follows –

“I, , do swear that in the office of Lord High Chancellor of Great Britain. I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God.”

It is not a duty to secure the political aims of a politician. If extra funds are available to secure what many see a gimmick, then surely funds can be made available to help victims of crime.

 

 

 

 

 

Awaab's Law - What when and how?

There has been a huge amount of media attention about Awaab’s Law following the tragic death of the two year old in Rochdale.

But what is this law all about? What will mean in practice? And will it meet expectations?

Awaab Ishak died on 21^st December 2020, just days after his second birthday. His family were tenants of Rochdale Borough Housing. The home suffered from numerous defects, particularly damp and mould. An inquest into his death took place in November 2022. The Senior Coroner for North Manchester found that Awaab died as a result of ‘a severe respiratory condition caused due to prolonged exposure to mould in his home environment.’

This sparked a frenzy of calls for change, from the media and politicians. One heartbreaking image went viral -

In the wake of this, on 9^th February 2023, Michael Gove, Secretary of State for Levelling Up, Housing and Communities announced Awaab’s Law. This would require social landlords to investigate and fix damp and mould within strict time limits. It would be achieved by amending the Social Housing Regulation Bill that was going through Parliament. The Social Housing Regulation Act 2023 came into force on 20^th July 2023. Before we get too excited, this does not mean that we now have Awaab’s Law!

What the Act does is add a new s10A to the Landlord and Tenant Act 1985. It creates an implied covenant that relevant landlords will ‘comply with all prescribed requirements that are applicable to the lease’. This covenant will apply to social housing tenancies in England to which s9A Landlord and Tenant Act 1985 applies. It has nothing to do with the private rented sector. So, it is a contractual matter, in line with other housing conditions obligations. The covenant will be enforced through ‘actions for breach of covenant’.

The important bit of course concerns the actual time scales! These will be set out in regulations made by the Secretary of State.

A consultation was published on 9^th January 2024 and has just ended. We do not yet have the regulations but the consultation gives us a pretty good idea of what to expect.

The relevant defects will be the 29 prescribed hazards contained in the Housing Health and Safety Rating System (HHSRS). This is wider than the ‘damp and mould’ that we expected. This is positive news and will include things; like security, water supply and heating etc. The consultation also has a subjective element which is welcome. The requirement will have to take into account ‘the actual resident’. So a resident who suffered from asthma will be at greater risk.

This is all good news for tenants… sort of.

The duties will be triggered by a significant risk. It will be for landlords to decide what is and isn’t significant. This is a worry. Won’t it lead to landlords deciding that in most cases there is no ‘significant risk’? The consultation mentions matters to be taken into account, such as -

HHSRS Guidance

The Government publication - Understanding and addressing the health risks of damp and mould in the home - GOV.UK (www.gov.uk)

Evidence from third parties such as doctors, social workers, schools…

I would expect many of the more aggressive landlords to deny everything. This is likely to end up in litigation. This will in turn mean a majority of cases being brought under a CFA with the risks that go with developing new areas of law, and which has led to, so few cases brought under s9A.

But leaving that rant side for a moment, what will the new ‘strict time limits involve’? As we know the present position is that a landlord is liable for disrepair once they know of the defect and fail to carry out remedial work within a reasonable time. How will this sit with new, enforceable fixed time scales? Is it the end of O’Brien v Robinson that was decided when I was doing my A Levels?!

This is how it will work –

1.     Landlords will be required to investigate a hazard with 14 days, which begins to run from the time they are aware of a potential hazard. This will probably mirror the current position in notice and will not be limited to actual complaints. Reports of hazards must be recorded. Interestingly, there will be no requirement for a physical inspection, unless requested by the tenant. Medical evidence will not be required.

A welcome note – ‘72. When investigating reports of damp and mould, it is crucial that the issue is not simply dismissed as a resident’s fault’. Will this finally see the end of that myth?

2.     Following the investigation a written report must be sent to the tenant with 48 hours

3.     If the investigation indicates that a reported hazard poses a significant risk to the health or safety of the resident, the registered provider must begin repair works within 7 calendar days of the written summary being issued. This has to be real work! ‘We consider that ‘beginning’ repair works would entail a worker being on site physically starting to repair and rectify a hazard. It will be irrelevant whether works are carried out by in-house workers, external contractors, or a combination.’ So it involves a worker turning up with tools!

4.     So doing the maths; 14 days plus 2 days plus 7 days = 23 days. So far so good! But what about finishing what we started?

B  Then we start to go downhill. 

Proposal 4: ‘The registered provider must satisfactorily complete repair works within a reasonable time period. The resident should be informed of this time period and their needs should be considered’

 

 Hang on! So have we huffed and puffed and ended up back where we started? The spin has been that landlords will have to ‘fix damp and mould within strict time limits’. It has to start within the 23 days but after, that the position is no different from now. Is it all that it has been cracked up to be? In one sense this was inevitable. How can you have a strict time-table for fixing a window catch as compared to a new roof?

There is a real danger that we will all settle down to things belong as they always were.

There are positives. The rules will mean that things will move quickly in the early stages. Reporting hazards will be nothing to do with any complaints procedures -  ‘63. The point at which the registered provider becomes aware of a potential hazard is the point at which legal obligations under Awaab’s Law will begin. It will not be necessary for residents to take a complaint through a landlord’s formal complaints procedure in order to trigger the timescales’.

The initial steps must be taken. They are not part of a new protocol. Failure to meet the deadlines will go to the heart of liability.

We expect the regulations to land soon. My biggest hope is that firms will be encouraged litigate condensation/mould cases and other s9A cases. That particular momentum cannot now stop…

Watch this rather big space!

 

 

 

 

 

 

 

 

 

Personal Inury and Housing Conditions

Thursday 25th January 2024 at 12.00 – 13.30

 

Housing conditions cases can often include a claim for Personal Injuries whether arising out of an accident or, more often, health related issues. So if someone falls down the stairs and breaks their neck because of a defective staircase they could well have a strong case! Equally if a tenant lives in a home affected by dampness and mould they can develop respiratory conditions such as aggravation. This can be a significant issue. The 16^th edition of the Judicial College Guidelines for General Damages in Personal Injury Cases suggests damages up to £5150 for ‘Mild Asthma, bronchitis, colds and chest problems (usually resulting from unfit housing or similar exposure).’

These are likely to increase as more cases are brought in relation to condensation and mould under s9A Landlord and Tenant Act. Recent press coverage of cases involving injury and death caused by mould has brought such issues to the fore.

This webinar will look at how we most effectively manage these cases and will include.

·      A brief introduction to liability for Personal Injuries in Housing Cases inc. s4 Defective Premises Act 1972
·      Paragraph 3.5 Housing Conditions Protocol and the Personal Injury Protocol
·      How do we assess whether –
(a)   A GP letter is likely to be enough
(b)   The GP letter can be relied on
(c)    Causation
·      The Personal Injury Protocol
·      Limitation
·      Costs and allocation – what about QOCS?
·      Quantum

The webinar is £90 per firm with no limit on numbers

The event is free to non-profit agencies and any form holding an annual ticket.
Email me to book a slot at stevecornforthconsultancy@gmail.com

The event is free to non-profit agencies and any firm holding an annual ticket.
Email me to book a slot.