Legal Obstacles - Chartered Institute of Housing pdfs/Presentations/Eastern 2011/Jan... · LEGAL OBSTACLES! Keeping Up to Date ... • The Case Law Digest ... EWCA Civ 1202 (26 October

Dealing with today’s

Legal Obstacles CIH Eastern Region 2011

Jan Luba QC

Housing Team

Garden Court Chambers

The Hurdler’s Charter

• Keep up-to-date

• Learn lessons from the woes of others (and commentaries on them)

• Let the right hand know what the left hand is doing

• Spend the penny to save the pound (the “human rights” case study)

• Plan for upcoming changes

AND THEREBY AVOID

LEGAL OBSTACLES!

Keeping Up to Date

• Recent Developments in

Housing Law in Legal Action magazine - monthly

• Housing Law Bulletin – weekly

(www.gardencourtchambers.co.uk)

• The Cases (www.bailii.org)

• The Case Law Digest (http://www.destin.co.uk/page/167/Case-Law-Digest.htm)

• The Housing Law Blog (“Nearly Legal”) at

(http://nearlylegal.co.uk/blog/)

Learning lessons

• Probably the best source for learning lessons is from our own complaints procedures.

• Next best is from complaints made against others (the Ombudsmen reports): see latest Hounslow case LGO Report ref no 10 019 388

• Then there are the helpful reports based on the mistakes of others e.g. homelessness handling (Homelessness: how councils can ensure justice for homeless people, LGO, July 2011)

The Left Hand/Right Hand

• Before we do something that may

have legal consequences we need

to check the facts across the whole

organisation.

• The lessons of Saxon Weald

Homes Ltd v Chadwick [2011]

EWCA Civ 1202 (26 October 2011)

Spend to save

• Pay for good legal advice on the content of your crucial documents before they are finalised

• When sued, get the best legal advice at the start (not at the end)

• When it will be cheaper, take the initiative: the lesson of R(Konodyba) v Kensington & Chelsea LBC [2011] EWHC 2653 (Admin) (17 October)

• Settle likely losers.

The Human Rights case-study

• You have an unqualified legal right to possession of a property that someone is occupying as their home.

• You start a straightforward (cheap) claim for possession and get a hearing date in the 5-minute undefended possession claims list.

• The defendant turns up (or a representative does).

• S/he asserts that everyone has a right to respect for their home (Article 8) and relies on the contention that granting a possession order would be to act unlawfully in breach of that right: section 6 Human Rights Act 1998.

• S/he asks for the claim for possession to be adjourned for a trial of that defence and for directions to be given.

It will happen…

• The cases of Pinnock and Powell have been decided and widely reported

• Your opponent will have Defending Possession Proceedings (7th Edition, LAG, 2010) Chapter 26 Human Rights Defences

• S/he will also have downloaded the free on-line update to Chap 26: http://www.lag.org.uk/files/93674/FileName/DPP7onlineupdateforweb.pdf

At the local level

• The case will be in the “5 minute” District

Judge possession list (perhaps a Deputy

DJ)

• The crucial decision will be the CPR 55.8

decision (to adjourn or not to adjourn)

• The rule is that “Where the claim is genuinely

disputed on grounds which appear to be substantial,

case management directions given under paragraph

(1)(b) will include the allocation of the claim to a track or

directions to enable it to be allocated.”

• If the case is adjourned you are looking at

delay and costs (see e.g. the full trial in

Brighton CC v Alleyne [2011] EW Misc 6

(CC) 5 April 2011).

So …be prepared!

• Have the material in your hands that

the other side will have in theirs

• Have your extracted quotes from

Pinnock and Powell ready to hand-

up to the judge

• If you have been tipped-off, have a

Witness Statement ready.

• And thus …resist the adjournment.

And if the DJ is ‘soft’?

• Do NOT start preparing for a trial that will be months off and cost a fortune.

• If the defence might succeed, settle NOW

• If it is ‘hopeless’ apply NOW to strike it out and/or appeal NOW against the decision to adjourn

• There will be appeals against orders made following refused adjournments but, if appropriate, resist them (see e.g. West Kent Housing Association Ltd v Haycraft [2011] EWCA Civ 992, 22 July 2011).

Plan for coming changes

• New Directions from the Social Housing Regulator

• New Policies & Procedures for Allocations and Homelessness

• New strategies on lettings

• The new “contractual” succession rights

• “Flexible” tenancies

• And much more in the Localism Act 2011