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News


23/04/14

Civil Litigation – An Application in time saves one under 3.9

Kaneria v Kaneria & Ors [2014] EWHC 1165 (Ch)
by Stephen Bishop

In the High Court Nugee J in Kaneria confirmed, if confirmation was necessary, that Mitchell had not changed the decision in Robert v Momentum Services Ltd [2003] EWCA Civ 299 that an in–time application for an extension of time was not, and should not be treated as, an application for relief from sanctions. Ordinary case management orders have not become de facto unless orders. Parties with genuine difficulties should still seek consent and apply to the court in time if it is not forthcoming.

Application of Mitchell to in time applications

He stated, at [34]: “It seems to me that unless and until a higher Court has said that the approach in Robert is no longer to be followed, I am bound by that decision (i) to regard an in–time application for an extension of time as neither an application for relief from sanctions, nor as closely analogous to one, and (ii) to exercise the discretion under that rule by applying the overriding objective rather than the terms of CPR r 3.9”

The order in Kaneria was not an unless order and on considering policy issues Nugee J said, at [53], that to apply the Mitchell guidelines to an in–time application such as this “would in effect erode the distinction between an ordinary order directing a timetable and an unless order, and turn every order specifying a time for taking a step into an unless order. I do not see any reason to suppose – and as I read Mitchell, there is nothing there to suggest – that this was the intention of the changes to the rules brought about by the Jackson reforms. It would run the risk that ordinary orders setting out timetables would indeed become “trip wires”, which is not the intention of the Jackson reforms: see the 18th implementation lecture by Lord Dyson MR at para 26 (cited and endorsed in Mitchell at [38]–[39]).”

He highlighted the risk if the Mitchell guidelines were to apply to in–time applications, that: “in every case that a request for an extension, however unobjectionable in itself, may be declined by the other party in the hope of persuading the Court to refuse an extension and thereby gain a significant advantage.” His view was that the application in Kaneria could have been disposed of by agreement or at a short unopposed hearing at virtually no cost to anyone, but instead had generated costs of £80,000 in the hope of gaining such an advantage. This is precisely the behaviour which has become all too common in proceedings. It is to be hoped that the judgment in Kaneria will help get proceedings back on track with parties having a culture of compliance, but maintaining a sense of perspective and consent when there are real reasons to request extensions of time.

Practice

The post Mitchell situation in respect of applications to extend time is now that an application to extend time made out of time will be treated as an application for relief from sanctions whereas one made before time expires will not.

It is not right to say that Jackson reforms have had no effect on such applications. Nugee J noted that the overriding objective had been modified adding an explicit reference to the need to enforce compliance with orders; however, he said. At [40], “unlike in the case of relief from sanctions, these considerations are not to be given paramount status”.
After considering the authorities Nugee J emphasised, at [49] the principle that: “a party who needs more time for a procedural step in existing proceedings should not just ignore the problem but should ask the other side for consent, and if consent is not forthcoming, should make an in–time application for an extension; and conversely that the other side should respond positively and in a spirit of co–operation to reasonable requests for consent rather than “cry foul” and seek to take opportunistic advantage of the other party’s difficulties.”

The advice therefore is to make every effort to comply with directions. If there is a valid reason why an order cannot be complied with, identify that in good time, approach the other side in plenty of time for consent, and provide them with sufficient evidence to show you are being reasonable. If faced with such an application consider it carefully. You are not required to simply agree but if the request is reasonable and you object there is a risk in costs.

17/04/14

Commercial Property: Holding Over – Are You Negotiating?

Barclays Wealth Trustees v Erimus Housing Ltd [2014] EWCA Civ 303
by Stephen Bishop

On 18 March 2014 the Court of Appeal, in reversing the decision of the High Court, emphasised that unless it is clear that negotiations for a new lease have ceased, the courts will be slow to infer a periodic lease rather than a tenancy at will when a tenant holds over after the expiration of lease, especially one which contracted out of the statutory protection provisions of the landlord and tenant act 1954.

The Issue

Both landlord and tenants should be aware of the possible consequences of holding over once a lease’s fixed period has come to an end, particularly as commercial rents are rising rapidly in London and other areas. Landlords will undoubtedly want to take advantage of any situation to increase the rents potentially by taking possession at a moment’s notice and re–letting, while tenants will want to have, where possible, security of tenure.

The Situation

A lease that benefits from the provisions of the landlord and tenant act 1954 provides clarity for the parties both in terms of the automatic continuation of the tenancy with the prescribed procedure for notice to terminate, and the right to apply for a new tenancy. However where the parties to the original lease contracted out of the provisions of the landlord and tenant act 1954 and the fixed term expires the situation is less advantageous from a tenant’s perspective and less clear in any specific case. Landlords are also exposed as there is still the possibility for a periodic lease to come into operation which would benefit from the provisions of the landlord and tenant act 1954.

The Principles & Negotiation

When a tenant holds over at the end of the term of a lease he is a tenant on sufferance until the landlord consents to the tenant’s possession when he becomes a tenant at will. The mere fact of continuing to pay the rent reserved by the previous lease does not of itself create a periodic lease. The court of Appeal reconfirmed the principle that ‘the payment of rent gives rise to no presumption of a periodic tenancy’. Rather, the parties’ contractual intentions fall to be determined by looking objectively at all relevant circumstances. Unless and until the parties have completed an agreement to change the situation, or where they haven’t when the court can safely infer that such a change has happened and there will be particular reluctance where the previous lease contracted of the statutory protection, in most cases the situation will remain a tenancy at will.

Frequently the parties will intend to negotiate a new lease, but when the parties have not come to a full agreement or directed their minds to all of the fundamental aspects, what is the situation? In such a situation the court will step in and fill the gaps in a way which is sensible and reasonable (Javad v Aqil [1991] 1 W.L.R. 1007). In Barclays Wealth Trustees the Court of Appeal reconfirmed that the significance of ongoing negotiations is that (at [23]) : “the obvious and almost overwhelming inference will be that the parties did not intend to enter into any intermediate contractual arrangement inconsistent with remaining parties to ongoing negotiations”. One question frequently faced by the courts, as in this case, was whether factually the negotiations were ongoing? In the words of Patten LJ at [24] “it means no more than that the negotiations should be continuing in the sense that both parties remain of the intention that there should be a new lease on terms to be agreed”. It is of note that activity is not a requirement and it doesn’t matter if the negotiations have stalled. In essence as long as there is a glimmer of life in those negotiations, i.e. the parties haven’t changed their intent to negotiate a new lease, then they are ongoing and no periodic lease is likely to be inferred. Of course as recognised by the Court of Appeal there will be cases where negotiations break down, or come to an end with the tenant still in occupation paying rent, or even having agreed to a new lease but not having executed one, where a court may safely infer that a periodic tenancy to existence. (see Walji v Mount Cook Land Limited [2002] 1 P&CR 13). As ever, to the disappointment of clients who seek certainty, there is always a question of fact and degree.

However from a tenant’s perspective they are exposed as tenants at will until such time as they can come to an agreement with the landlord; starting the negotiations or even agreeing some of the terms will generally be insufficient. It is highly risky simply to wait once negotiations have started, hoping that a long enough period will pass such that a court might find a periodic lease as in Walji.

Landlords are to a lesser extent exposed as they have the option possession at a moment’s notice. However if the property is in an area where rents are falling or difficult to re–let, then they stand to lose if a tenant can vacate at a moment’s notice with a consequent loss of revenue.

14/04/14

36 Bedford Row is delighted to announce the appointment of three new Queen’s Counsel

Chambers is delighted to announce the appointment of three new Queen’s Counsel in this year’s round. 

Adrienne Lucking and Felicity Gerry are members of our Criminal team 36 Crime;  and Will Tyler is a member of our Family team 36 Family. All three will be elevated to Silk at a ceremony on 14th April 2014.

14/04/14

36 Bedford Row’s Emilie Pottle successfully completes Paris Marathon in aid of the Bar Pro Bono Unit

Emilie began running 18 months ago as a way to keep fit and blow off steam. She received a lot of encouragement from Chambers and decided to enter the Paris Marathon to both challenge herself and support the Bar Pro Bono Unit. Emilie undertakes several cases for the Unit each year and says she has always blown away by their dedication and hard work to bring together deserving applicants and Counsel.

Emilie has raised almost £400 so far for the BPBU, please continue to donate online at virginmoneygiving/emiliepottle 

 

                                 EP

11/04/14

36 Employment is delighted to announce the arrival of Stephen Bishop (2006 Call)

Stephen Bishop, formerly of Goldsmith Chambers, has joined 36 Employment and 36 Civil. Stephen’s primary focus is Employment law, although he will continue to maintain his practice in associated Commercial work and Property law.

If you would like any further information about Stephen’s practice or the services Chambers can offer, please contact our Civil Practice Manager Chris Lane or one of our helpful civil clerks, Everton Wedderburn or Zoe MacQueen.

 

10/04/14

Saoirse Townshend to be posted in Ukraine to monitor upcoming Presidential elections

Next month, Saoirse Townshend will be posted in Ukraine to monitor the upcoming Presidential elections on behalf of the Foreign and Commonwealth Office. 

See here for more details of the missions: http://www.osce.org/odihr/elections/ukraine/116624

09/04/14

Rebecca Herbert short–listed for Leicester Law Society Barrister of the year 2014

36BR are very pleased to announce that Rebecca Herbert has been short–listed for the LLS Barrister of the Year.

The results will be announced at the annual LLS dinner on 9th May.

07/04/14

36 Family in the Court of Appeal again, Hannah Markham represents the children’s guardian

Re W

This was an unsuccessful Appeal by the LA against a decision to place children in the care of family members in Poland. The family members were not represented at first instance but were parties and the lead Judgment of Lady Justice Macur reminds all that the role of the Guardian is merely that of an equal party and should not be, as the Local Authority argued in the appeal, elevated to any higher status. The advocate for the guardian bears no higher responsibility for assisting litigants in person than any other advocate and none of the advocates should find themselves assisting litigants in person by way of framing questions or displaying a reticence to challenge contrary evidence (if opposing the case of the litigants in person). All advocates do however have their paramount duty to the court to ensure that no mistake as to law or fact is made, in particular by a litigant in person or the Judge when addressing the litigant in person’s case. It is the role of the Judge, as adjudicator of fact and law to assist through all ‘reasonable assistance’ a litigant in person or ‘non represented party’ to put their case.

28/03/14

36 Bedford Row’s response to CBA announcement

The Criminal team at 36 Bedford Row welcomes the announcement today that the CBA will ballot its membership in relation to the proposals arising out of recent negotiations with the MOJ.

The negotiated position fails to recognise the changes that the MOJ continues to implement in relation to solicitors’ contracts and fees.

These are changes that will have a profoundly damaging effect on access to justice and the quality of our Criminal Justice system.

The Criminal team at 36 Bedford Row strongly support the ongoing campaigns by the CLSA and LCCSA. Individuals within the team will manifest their support in the following ways:

a. They will not take VHCC cases at the new rates;

b. They will not take returned Crown Court work from ‘striking’ HCAs;

c. They will not take returned Magistrates’ Court work from ‘striking’ solicitors.

At the same time we will be actively exploring with our professional colleagues other ways we can support the continuing campaigns.

12/03/14

36 Employment’s Richard O’Dair to speak at Employment Lawyers Association Annual Conference

36 Employment are delighted to announce that our head of the Employment Team, Richard O’Dair has accepted an invitation to speak on Age Discrimination at the Employment Lawyers Association Annual conference on 22nd May 2014

For full details of the event, please go here:

http://www.elaweb.org.uk/training-and-events/443

27/02/14

36 Family – Children Law Newsletter (Edition 1, 2014)

Please see a copy of our Children Law Newsletter (Edition 1, 2014) here. 

27/02/14

36 Family – Family Finance Newsletter (Edition 1, 2014)

 Please see a copy of our Family Finance newsletter (Edition 1, 2014) here.

26/02/14

36 Family – Father granted leave to oppose an application for an adoption order

Malcolm Macdonald represented a father in the High Court who sought a stay of an application by prospective adopters to adopt his daughter pending the determination of his case before the European Court of Human Rights or, in the alternative, leave to oppose the application for an adoption order. 

The court granted leave to oppose the application for an adoption order on the grounds that there had been a change of circumstances since a placement order had been made and  the father had solid grounds for opposing the making of an adoption order. The change in circumstances was that the cases of Re B [2013] UKSC 33 and Re B–S (Children) [2013] EWC Civ 1146) cast doubt on whether the case had been properly decided at first instance and on appeal to the Court of Appeal and the Supreme Court, The granting of leave by the court meant that the father would have the opportunity for the court to assess the ‘merits’ of making an adoption order. The granting of leave to oppose the application for an adoption order by the court called into question the need for the case to proceed in the European Court of Human Rights.

Recent News

Civil Litigation – An Application in time saves one under 3.9
Read more

Commercial Property: Holding Over – Are You Negotiating?
Read more

36 Bedford Row is delighted to announce the appointment of three new Queen’s Counsel
Read more

36 Bedford Row’s Emilie Pottle successfully completes Paris Marathon in aid of the Bar Pro Bono Unit
Read more

36 Employment is delighted to announce the arrival of Stephen Bishop (2006 Call)
Read more

Saoirse Townshend to be posted in Ukraine to monitor upcoming Presidential elections
Read more

Rebecca Herbert short–listed for Leicester Law Society Barrister of the year 2014
Read more

36 Family in the Court of Appeal again, Hannah Markham represents the children’s guardian
Read more

36 Bedford Row’s response to CBA announcement
Read more

36 Employment’s Richard O’Dair to speak at Employment Lawyers Association Annual Conference
Read more

36 Family – Children Law Newsletter (Edition 1, 2014)
Read more

36 Family – Family Finance Newsletter (Edition 1, 2014)
Read more

36 Family – Father granted leave to oppose an application for an adoption order
Read more