Civil way
Date: 18 June 2009
Authors: Stephen Gold
Issue: Vol 159, Issue 7374
Categories: Civil way, Procedure & practice
Civil way
CFO rates hit rock bottom; Ecstasy for tolerated trespassers; Master loses Rolls; Reduced assets
Not so special
Court Funds Office’s special account (mainly for investment of funds for children and others who lack capacity) and basic account (mainly for funds held on deposit during proceedings) saw their rates halved to 3% and 2% respectively on 1 February 2009. The reduced rates were halved again on 1 June 2009. For the innumerate, this means the special rate is down to 1.5% and the basic rate to 1%. Litigation friends may have a go at seeking to persuade the court to allow them to invest themselves. The special account change is of more than academic importance to personal injury pleaders as the rate is utilised in calculating interest on special losses in personal injury claims.
TA TA to the TT
The tolerated trespasser (TT) (a status described as “conceptually peculiar, even oxymoronic” by Lord Neuberger in Knowsley Housing Trust v White [2008] UKHL 70, [2008] All ER (D) 115 (Dec) was a former residential tenant who remained in occupation after the court had granted a possession order. An unattractive status really. “Your landlord a good bloke, then?” “I’m in social housing actually and I don’t have a landlord. Just someone who tolerates me whilst I trespass. Come back to mine for a drink?” “I think I’ll give it a miss. Thanks for asking.” The TT lost rights of succession and exchange and relief for disrepair and the former landlord’s ability to increase the rent was in doubt.
The Housing and Regeneration Act 2008, s 299 and sch 11 were brought into force on 20 May 2009 (except for schedule 11 paras 3(3), 8(3) and 14(3) relating to court power to discharge or amend which are not to be commenced because they are no longer thought to be necessary in view of the decision in Porter v Shepherds Bush Housing Association heard with Knowsley above) by the Act’s fifth commencement order (SI 2009/1261).
Also into force on the same date was the Housing (Replacement of Terminated Tenancies) (England) Order 20009 (SI 2009/1262) (for Wales, SI 2009/1260 (W112)). Together, the legislation; Prevents tenants becoming TTs in the future with secure, assured, introductory and demoted tenancies ending only on execution under a possession order unless the tenant has given notice to quit or surrendered (introductory and demoted tenancies having been thrown in despite Knowsley out of an abundance of caution).
l Gives replacement tenancies to those who were TTs on 20 May 2009 unless they had entered into any form of new tenancy with their old landlord and whether or not the landlord had changed; Provides for the replacement tenancy to be the same type as the original tenancy or for the nearest equivalent where this is not possible (the order modifying the Act in this connection); treats the possession order as applying to the replacement tenancy, so far as practicable; Empowers the court in a claim for breach of the tenancy agreement or breach of statutory duty to reckon a TT period by treating the new tenancy and the original tenancy as the same and as having continued without interruption.
Postponed v suspended
The postponed possession order on form N28A may now lose some of its allure with landlords asking for a suspended order in form N28. But the postponed order could well be favoured by the court because it means the tenant will be given notice of the landlord’s intention to proceed to eviction and effectively requires the court’s leave for enforcement. Template possession orders are being revised to remove references to payment for use and occupation and words implying that the tenancy can end while the tenant is still in occupation.
Law bites
Let’s do it
Solicitors, barristers, certified notaries and approved licensed conveyancers can do it. Soon approved members of the Association of Chartered Certified Accountants will be able to do it. What? Provide probate services for consideration.
Roll over
The duty to maintain the roll of solicitors is transferred from the Master of the Rolls to the Law Society (it won’t be the same) and the routes of appeal from decisions made by the Law Society and the Solicitors’ Disciplinary Tribunal are transferred from the Master of the Rolls to the High Court on 1 July 2009 (Legal Services Act 2007 (Commencement No 5, Transitory and Transitional Provisions) Order 2009 (SI 2009/1365).
Tough competition
Neither an ancillary relief claim nor a confiscation order under the Criminal Justice Act 1988 enjoy automatic priority, the one over the other. The wife will fail when in competition with the confiscation order where complicit in the crime; the husband’s assets were reduced to nil by having to pay now what he ought to have paid years ago; or where the domestic economy and the assets accumulated were only of the size they were because the husband had failed to pay tax which had been due. Stodgell v Stodgell [2009] EWCA All ER (D) 56 (Jun)—confiscation order for circa £900,000 after cheating the Revenue and false declarations.
Stephen Gold is a district judge
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