Secure tenancies and minorsThe problem with the unexpected is its sheer unexpectedness. The sun may be shining, the way ahead clear and then, out of the blue, it happens. That may have been the feeling of housing officers in the London Borough of Hammersmith and Fulham when they purported to grant a tenancy to a minor, no doubt unaware of the legal complexities this would unleash. The ‘tenant’ in question (the appellant), when aged 16 and pregnant, had applied to the council for accommodation under the homelessness provisions of the Housing Act 1996. For, following regulations in 2002, homeless 16- or 17-year-old applicants now have a priority need for accommodation. The council thereupon entered into a tenancy agreement with the appellant in its standard form. Subsequently, when complaints were received about nuisance and rubbish in respect of her occupation of the premises, the council served a notice to quit upon her. However, she complained (among other things) that, since she could not hold a legal estate, the notice to quit was not effective. Her contentions were upheld by the Court of Appeal on 1 April in Alexander-David v Mayor and Burgesses of the London Borough of Hammersmith and Fulham  EWCA Civ 259. The case will prompt local government lawyers to recall (with varying degrees of affection) the Elysian fields of equity and trusts. For section 1(6) of the Law of Property Act 1925 provides that a minor is incapable of holding a legal estate. And (per paragraph 1(1) of schedule 1 to the Trusts of Land and Appointment of Trustees Act 1996) any purported grant of a legal estate to a minor will not achieve this but will operate as a declaration that the premises are held in trust for the minor. In the circumstances, the Court of Appeal agreed that, for so long as the council held the premises in trust for the appellant, it could not lawfully destroy the subject matter of the trust by serving notice to quit upon the appellant. Sullivan LJ (who gave the leading judgment) said that the council, in the absence of any other trustee, was in the uncomfortable position of being both lessor and trustee. As lessor, the council was not merely a party to the breach of trust, but the instigator of the breach. Consequently, he concluded that service of notice to quit only on the appellant minor as beneficiary of the trust was not sufficient to terminate the tenancy that was being held by the council as trustee on her behalf. Nevertheless, although it is not the role of the courts to advise, Sullivan LJ did helpfully suggest that, in such cases, the proper grant of a genuine licence may assist, as might an agreement to grant a lease for the period until such an applicant turns 18. But, in any event, the court highlighted the importance of expressly recognising the inability of a minor to hold a legal estate and stating that such an estate is not being granted but the council is instead securing that accommodation is available by granting something other than such an estate. ConsultationIn the leading case of R v North and East Devon Health Authority ex parte Coughlan  QB 213, Lord Woolf had identified the elements of effective consultation. It must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken. Given this, the Court of Appeal found on 25 March 2009 that a consultation conducted by the boundary committee in the context of local government review had in the circumstances fallen short (see R (Breckland District Council and others) v Boundary Committee; R (East Devon District Council) v Boundary Committee  EWCA Civ 239). Where the boundary committee erred was in its consultation on affordability. For the financial information provided was complicated and indigestible. And the ‘. . .need to explain the financial side of the draft proposals to the public in an understandable way was lost sight of or not understood’. As the court noted, the relevant statutory requirements included publishing enough material to enable those interested to respond intelligently. That, in turn, required the information to be published in a form which members of the public could understand. Therefore, any public authority contemplating a future consultation exercise will need to make sure that this will be conducted so as to be fit for its particular purpose – statutory or otherwise. There is always a public authority tension between what might be called ‘customer-centred governance’ and regulation. So while most local authorities will try to be ‘customer responsive’ to their council tax payers and other stakeholders, their regulatory functions mean that not everyone will always feel treated as a ‘customer’. For, in its nature, regulation will often cause pain to those subject to its penalties and processes. Equally though, local authorities have a responsibility to use their powers reasonably and proportionately. In other words, regulatory action should be exercised so that it bears a reasonable relation to the outcome required. Indeed, when in 2000 the government introduced a regulatory framework to govern the way in which public authorities use covert investigatory techniques, proportionality was enshrined within it. The measure in question was the Regulation of Investigatory Powers Act 2000 (RIPA). The act enables local authorities, where necessary, to conduct specified surveillance proportionately to achieve specified statutory objectives involving (among others) public safety, public health and assessing or collecting taxes. As the government points out, local authorities can use RIPA to address various social ills including: trading standards issues (eg loan sharks and rogue traders); dealing with counterfeit goods, unsafe toys and electrical items; addressing benefit fraud and council tax evasion; and environmental protection, for example stopping large-scale waste dumping, sale of unfit food and illegal ‘raves’. In recent times, however, use of RIPA has attracted some controversy. For instance, the Times of 17 April highlighted the case of the Dorset parents put under surveillance by their local authority to check that they were not trying to cheat school catchment regulations. The article pointed out that the couple and their three daughters were followed for three weeks after an anonymous informer wrongly told their authority that they were lying about their address to get their youngest child into the same school as her siblings. And concerns have been rumbling for a while. Back in July 2008, the Local Government Association (LGA) announced that its advice to authorities is that, except ‘in the most unusual and extreme of circumstances’, it is inappropriate to use RIPA powers for trivial matters and the ‘. . .leaders of the four political groups at the LGA also do not consider dog fouling or littering as matters which fall within the test of “necessary and proportionate”’. The Home Office has also indicated that ‘….it shouldn’t be necessary or appropriate to use RIPA-directed surveillance powers to observe people putting their rubbish bins out early for collection’. RIPA powers should be used ‘only where it is necessary and proportionate to do so’. In this context the Home Office on 17 April issued a public consultation paper on RIPA. As it did so, the government indicated that, in the light of recent concerns, it is particularly interested in how local authorities use RIPA to conduct investigations into local issues. In her introduction, the then home secretary Jacqui Smith said she shared concerns about how ‘a small number of local authorities have used techniques under RIPA when most of us would say it was not necessary or proportionate for them to do so’. She indicated that she did not ‘think it is right for RIPA to be used to investigate offences relating to dog fouling or to see whether people put their bins out a day early’. The LGA agreed, saying that all public bodies using surveillance powers ‘must rebuild public confidence by demonstrating this is done to help bring serious criminals to justice’. So the consultation asks whether the rank at which local authorities authorise the use of covert investigatory techniques be raised to ‘senior executive’. It also consults on whether elected councillors should be given a role in overseeing the way in which local authorities use such techniques. The government says that it would particularly like to hear from members of the public, campaigning groups and specialist organisations concerned with the provision of public authority services and human rights considerations. The consultation closes on 10 July and the paper can be accessed at: www.homeoffice.gov.uk/documents/cons-2009-ripa. Nicholas Dobson, Pinsent Masons, Leeds
There’s real irony in Alan Milburn’s report on Fair Access to the Professions. It reintroduces to the diversity debate a subject that is supposed to have been consigned to the dustbin of history (as Trotsky would certainly not have put it) by ‘third-way’ proselytisers like Milburn himself – class. Blairism instructs that identity (and in particular race, gender and sexuality) is what truly defines people in this solipsistic, post-ideological age. Socio-economic status, like collectivism, is so 1970s, like British Leyland and The Rubettes. ‘We’re all middle-class now.’ As a political philosophy it delivered three election victories in the boom years. Just about everyone could keep up with the Joneses by maxing out their credit card or leveraging their houses to fulfil aspirations stoked by rampant materialism. Britain remained a low-wage, low-skills economy, but it didn’t matter. Now the party’s over. As we sober up, it’s clear that Britain is as hamstrung by class as ever. And in certain respects – including in respect of access to, and advancement within, the legal profession – seemingly more so. Depressingly, after 12 years of (nominally) Labour government, equality of opportunity remains as distant an aspiration as ever. So, What Is To Be Done? (As Lenin certainly would have put it, and indeed did). Well for a start, the government should look closer to home. The legal profession did not abolish maintenance grants for students and introduce fat tuition fees, disincentivising poorer people from seeking higher education, especially at the top universities. Nor did it entrench in society a culture of greed and soaring inequality that established private gain and private sector provision as virtues in their own right, implicitly scorning the notion of state provision – including state school provision. Milburn deserves credit for disinterring the class debate nevertheless. And the report’s authors are right: the profession does need to look again at diversity and consider the issue more broadly. Signatories to the Law Society’s Diversity Charter pledge to publish annually the diversity profile of UK employees and details of their work on equality, diversity and inclusion. They need to remember that social class needs to part of their rubric, along with gender, race, disability and sexuality. Otherwise the elephant in the room will continue to be ignored.
A new online service to promote pro bono legal work around the world and provide an international hub for information on anti-corruption and good governance was launched today by the Thomson Reuters Foundation TrustLaw provides: an online database of national legislation; international conventions; news; country profiles; law reviews; and advice on anti-corruption and good governance. The site also offers TrustLaw Connect, an online marketplace or ‘dating service’, to connect pro bono lawyers with NGOs, government agencies and others in need of legal assistance It will act as a ‘trusted intermediary’, vetting participants on all sides to ensure confidence in the requests and assistance provided. Over 190 organisations working in more than 140 countries have already joined. They number over 60 leading law firms including Clifford Chance, Slaughter and May, Eversheds and Herbert Smith. Thomson Reuters Foundation chief executive Monique Villa said: ‘At a time of great economic uncertainty legal support is more important than ever for organisations addressing the critical social and environmental issues of our age. The dramatic response we have already seen from the non-profit and legal communities highlights the appetite and need for such a service.’ Clifford Chance worldwide senior partner Stuart Popham, said: ‘Trustlaw is such a great concept that will really help lawyers fulfil their social responsibilities. It is independent, cutting edge and has already got the support of large parts of the international legal community.’ For more details go to www.trust.org.
Today sees the publication of the 2010 Legal 500. Reputations and egos will be bolstered or dented and questions will be raised: ‘Why is such-and-such still ranked above us, when we all know that we are better?’As a marketer, it is easy to loathe the directories. They are a thankless task, requiring a huge amount of work at a very busy time of the marketing year. In the spectrum of how client-facing an activity is, directories rank pretty low. In fact, they can sometimes create an unwelcome burden on clients who are expected to give their valuable time to the researchers on your behalf. Collating meaningful evidence of performance can be an uphill struggle. There are a few wonderful partners who keep a running record of all their department’s matters or transactions during the year and it is a simple task to review this and pick out the leading examples for the submission. However, often there is a last-minute scrabble to collate such detailed information and even a client list, often requiring several iterations to fill in all the details. Obtaining the details of suitable referees can be a challenge too. You need clients that you are confident will speak highly of you (preferably in a quotable soundbite!), that are suitably credible and high profile compared with the referees provided by your competitors. It is courteous to ask their permission, so ideally these are clients that you are in close regular contact with – not someone you did a project with 10 months ago and have not spoken to since. Saying all that, a firm that is serious about improving its directory rankings and consequently implements efficient systems to collect the information required above can be a dream to work with. The information collected on matters and transactions is even more useful in tenders, and a partner who maintains close relationships with all clients is usually a fabulous rainmaker. Positive quotations can also provide new material with which to update the web site and other marketing material. What can you do if you don’t get the ranking that you hope for next week? First of all check through your submission to ensure that you did provide all the information required. Did you really sell yourselves well? I have often come across submissions where firms do not provide a client list or client names for the sample matters on the basis of client confidentiality. However, consider that the researcher will undoubtedly be comparing your unattributed cases with competitors who have provided names and details. Then you can contact the researcher for feedback, but remember that they will probably be besieged immediately after publication. I prefer to email the researcher to make an appointment for a telecom some days hence. This will give them time to research the situation and provide more meaningful feedback which will be invaluable for planning your strategy for the 2011 submission, which is only just around the corner.
Two-thirds of lawyers now use a BlackBerry device for work, and three-quarters check their messages either constantly, or at least every hour, research has suggested. A survey of 100 solicitors from firms of all sizes by research company Jures, on behalf of legal publisher LexisNexis, also found that 11% of respondents already have an Apple iPad, despite the devices having only been launched in May. A further 10% said they had an eBook reader such as Kindle, which they used for legal work. More than three-quarters of the lawyers questioned sad they preferred online or digital resources to ‘traditional, paper-based libraries’. Jures director Jon Robins said: ‘Our research indicates that lawyers see themselves as quick off the mark when it comes to embracing the latest IT. They appreciate the benefits technological changes can have on their working lives. ‘Plus, lawyers are also increasingly aware that their clients expect them to be accessible, whether they like that or not. They realise how new technologies can help them achieve this objective.’
The first and second claimants were two companies, R&D and Templeco. The third claimant was an individual (SF) who controlled the two companies. The defendant was a Dutch bankruptcy trustee of an English registered company company, PVL, which had its place of business in the Netherlands. An ‘Intra-Group Asset Transfer Agreement‘ and related share sale agreement took place between PVL and the claimants in June 2009, shortly before the defendant became administrator. Under that agreement, PVL’s intellectual property rights were vested in R&D for a consideration of £3m paid for by a transfer of shares in R&D to PVL. PVL then sold the R&D shares to Templeco in exchange for SF waiving £3.1m of his loans to PVL. The defendant maintained that the intra-group asset transfer agreement was a disposal of assets in fraud of creditors. The claimants denied that it was. At that point, a supervisory judge was appointed and the defendant made a declaration pursuant to Dutch law that the intra group transfer was void. On 27 July 2009, a settlement agreement was made between the parties to facilitate the sale by the defendant of the disputed intellectual property rights. The claimants maintained that, in a letter sent before the settlement and which had induced the settlement, the defendant had agreed that PVL’s indebtedness to SF was at least €3m. On 4 March 2011, the claimants issued proceedings in the English court seeking damages for misrepresentation and/or breach of contract. They served the defendant at his professional address in the Netherlands without seeking permission to serve out on the ground that Civil Procedure Rule 6.33(1) applied because the defendant was domiciled in a member state. The defendant filed an acknowledgment of service on 6 April, but failed to challenge jurisdiction within 28 days, as required under CPR 58.7(2). The claimants served their particulars of claim on 25 May. In due course, the defendant sought to challenge the jurisdiction of the court and applied for an extension of time to do so, and, if that was granted, submitted that the proceedings should be stayed or dismissed. His primary ground was that the relevant European legislation was not Council Regulation (EC) 44/2001 (on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) (the Judgments Regulation) which replicated an identical provision in the Brussels Convention, on which the claimants relied, but Council Regulation (EC) 1346/2000 (on insolvency proceedings) (the Insolvency regulation). That regulation accorded jurisdiction to the law of the state in which the bankruptcy proceedings were opened, in the instant case, the Netherlands. The main issues in the case were: (i) whether the defendant should be permitted to challenge the jurisdiction even though he was out of time; (ii) whether the bankruptcy exception in article 1.2(b) of the Judgments Regulation applied so as to exclude the application of that regulation; and (iii) if the bankruptcy exception applied, whether the proceedings should be stayed or dismissed on the basis of forum non conveniens. The resolution of the first issue depended on whether there was substance in the challenge that the proceedings did not fall within the Judgments Regulation because they were excluded by article 1.2(b) which provided that the Judgments Regulation was not to apply to bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings. Consideration was given to the case of Gourdain (Liquidator of Soc. Fromme France Manutention) v Nadler  ECR 733 (Gourdain) which stated to the effect that if decisions relating to bankruptcy and winding-up were to be excluded from the scope of the Brussels Convention (the convention) they had to derive directly from the bankruptcy. In relation to (ii) the claimants submitted, inter alia, that the claims in the proceedings were independant claims under the general law and that the derivation in Gourdain referred to juridical derivation and not factual derivation which was ascertained by focusing on the pleaded claim and not the facts. In relation to (iii) the claimants contended that notwithstanding that the applicable law of the settlement agreement and any collateral contract was Dutch law, England was the appropriate forum as, inter alia, the characteristic place of performance of the contract according to that applicable Dutch law was England. The application would be allowed. (1) The starting point in determining what proceedings were excluded from article 1.2(b) of the Judgments Regulation was the decision in Gourdain where the European Court of Justice had stated that ‘it is necessary if decisions relating to bankruptcy and winding-up are to be excluded from the scope of the convention, that they must derive directly from the bankruptcy or winding-up, and be so closely connected with the proceedings for the liquidation des biens or the reglement judicire’. It was therefore necessary to ascertain whether the legal foundation of an application was based on the law relating to bankruptcy and winding-up as interpreted for the purpose of the convention. It was clear that the fact that a claim factually depended on the bankruptcy did not in itself suffice to bring it within article 1.2(b). However, even though a factual derivation was not sufficient in all cases it did not mean that it never sufficed and that a direct juridical derivation was necessary. It was the closeness of the link, in the sense of the Gourdain case-law, between a court action and the insolvency proceedings that was decisive for the purposes of deciding whether the exclusion in art 1.2(b) of the Judgments Regulation was applicable. A key factor in concluding that there was a link between a court and insolvency proceedings was the extent of the liquidator’s powers (see , , , , ,  of the judgment) In the instant case, the proceedings were excluded from the ambit of the Judgments Regulation by article 1.2(b). All that the defendant had done as PVL’s trustee in bankruptcy had been subject to the supervision of the supervisory judge. Further, the underlying transactions about which the claimants had brought their claims were negotiations and a settlement between them and the defendant acting as the trustee of PVL’s bankruptcy. The dispute concerned the insolvency process/procedures. The aim of the defendant’s declaration was to preserve the rights of the general body of creditors over PVL’s assets. The post-insolvency declaration that the ‘Intra-Group Asset Transfer Arrangement/hive-down’ was void as a fraudulent transaction undoubtedly qualified under the Gourdain formulation. On the evidence, the negotiations and the settlement did also. The settlement was the direct consequence of the exercise by the defendant of power he had under Dutch law in relation to the conduct of PVL’s insolvency proceedings. To regard the statements made in negotiations to settle a dispute about the way to conduct the insolvency process in the future and the resulting agreements as directly derived from and closely connected with the insolvency proceedings and thus within the Gourdain formulation was not to give article 1.2(b) of the Judgments Regulation and the Insolvency Regulation too broad an interpretation (see -,  of the judgment). Conflict of laws – Challenge to jurisdiction Gourdain v Nadler: 133/78  3 CMLR 180 applied; SCT Industri AB i Likvidation v Alpenblume AB: C-111/08  All ER (D) 47 (Jul) applied; Seagon v Deko Marty Belgium NV: C-339/07  All ER (D) 112 (Feb) considered; German Graphics Graphische Maschinen GmbH v Schee: C-292/08  All ER (D) 75 (Sep) considered; Bowles (decd), Re; Hayward v Jackson  2 All ER 387 considered; Byers v Yacht Bull Corp  All ER (D) 217 (Feb) considered. (2) A proper case in which to exercise the court’s discretion in which to (extend time was one where the administration of justice would not be affected by granting an extension, whereas a failure to do so might involve a case being heard in England which might otherwise not have been. If when the merits of the challenge to jurisdiction were considered it could be seen that there was no prejudice to the claimant, that was a proper case for granting the extension (see  of the judgment). Applying established law, in all the circumstances the delay was such that there was a strong case for an extension of time (see  of the judgment). Sawyer v Atari Interactive Inc  All ER (D) 36 (Mar) applied; Texan Management Ltd v Pacific Electric Wire & Cable Company Ltd  UKPC 46 considered. (3) In the instant case, the claimants’ submissions in relation to the appropriate forum for the proceedings would be rejected. First, it had already been decided that the instant claims satisfied the Gourdain formulation. Secondly, a Dutch court would be better placed to apply Dutch law, which was the applicable law of the contracts and the transactions between the parties (see  of the judgment). Charles Samek QC and Charlotte Davies (instructed by Withers LLP) for the claimants; Stephen Davies QC (instructed by Brown Rudnick LLP) for the defendant. Polymer Vision R & D Ltd and others v Van Dooren: Queen’s Bench Division, Commercial Court: 17 November 2011
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Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe now for unlimited access Get your free guest access SIGN UP TODAY Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters
Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Subscribe now for unlimited access Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Get your free guest access SIGN UP TODAY To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN
Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Get your free guest access SIGN UP TODAY Subscribe now for unlimited access Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN