>> Ivy booking problems
>> Charging order beats bankruptcy
>> Hire care offers
>> relet victory for consumers
Higher charges Credit hire litigation: third series: instalment 609. Is there a failure to mitigate by a claimant who refuses the defendant’s insurers offer of a replacement car and instead hires away on credit? It depends on what the defendant’s insurers told him. In Copley v Lawn and another case [2009] EWCA Civ 580 the Court of Appeal held—and its decision has implications in non-credit hire cases too—that it was not unreasonable for a claimant to reject or ignore an offer from the defendant or his insurers which did not make clear the cost of hire to the defendant for the purpose of enabling the claimant to make a reasonable comparison with the cost which he is incurring or is about to incur.
Half century notched up The 50th CPR update incorporating changes made by the Civil Procedure (Amendment) Rules 2009 (SI 2009/2092) are up and running on 1 October 2009. Stay with us for a summary next time. Not over exciting.
Supremacy
The appellate jurisdiction of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council transfer over to the new Supreme Court on 1 October 2009.
Our solicitor friends will be Solicitors of the Senior Courts (that’s the Court of Appeal, the High Court and the Crown Courts) rather than Solicitors of the Supreme Court from 1 October 2009. For this, thanks— or perhaps no thanks—should be given to the Constitutional Reform Act 2005, Sch 11, para 21(6). Booking a table at the Ivy could become a little harder.
Your preference may be to postpone devouring the Supreme Court Rules 2009 (SI 2009/1603) until you get a case in the Supreme Court. In the meantime, we have perused them for you. They are more readable than their predecessor. Just think Justices of the Supreme Court and Panels of Justices. There will be 11 justices with five of them over 70.
Fees are governed by the Supreme Court Fees Order 2009 (SI 2009/2131) and follow the consultation proposals (see NLJ, 3 April 2009, p 511). However, there has been some mitigation in devolution cases. And there’s a nice one for interveners. Where an application for permission to intervene is filed by a charitable or not-for-profit organisation which seeks to make submissions in the public interest, the fee otherwise payable will be remitted or reduced.
Charging Claws
Interim charging order—bankruptcy petition issued against debtor—final charging order—bankruptcy order. That was the sequence of events in Wright v Nationwide Building Society [2009] EWCA Civ 811 [2009] All ER (D) 305 (Jul). The Court of Appeal held that the charging orders should stand. A judgment creditor was not to be deprived of the benefit of his security in this situation by reason of the bankruptcy alone. However, the charging orders could be susceptible to discharge under the Charging Orders Act 1979, s 3(5) (see, for example, C & W Berry Ltd v Armstrong-Noakes deceased and another [2007] EWHC 2101 (QB), [2007] BPIR 1199). But if the court is aware of bankruptcy proceedings between interim and final orders then it should adjourn the application for a final order to await the outcome of the bankruptcy proceedings.
Where a bankruptcy order is made between interim charging order and the final charging order hearing, the court has a discretion to make the final order. The discretion is to be used with great caution and only in exceptional cases (see NLJ, 6 Feb 2009, p 194).
Let alone
The OFT has finally prevailed in its attack on the old and new lettings standard conditions of Foxtons. In OFT v Foxtons Ltd [2009] EWHC 1681 (Ch), [2009] All ER (D) 110 (Jul) Mann J sent shock waves well beyond the Foxtons’ head office as he branded as unfair within the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) (UTCCR) and so unenforceable, conditions which required the landlord to pay commission on renewals of letting agreements and sales of rented properties. The likelihood is that such conditions have started a mournful journey to the contractual cemetery.
Renewals, extensions and continuations (renewals)
Mann J was not deciding whether these conditions were always unfair but whether Foxtons were so. UTCCR, reg 6 precludes application of the fairness test to a core term including one providing for price or remuneration provided it is in plain and intelligible language. The judge found the renewal commissions terms not to be core terms but he thought it might be possible to make such conditions core terms if there was real negotiation or real bargain between the parities on this element. A real degree of clear disclosure, if not flagging, would be needed. He then went on to find they were unfair in Foxtons’ old and new forms of agreement. It was unlikely that the typical consumer who had got a tenant for say one year and paid 11% of the rent up-front (Foxtons’ rent collection charge) would expect a repeat bill in year two (and all years thereafter) unless that point was spelled out to him. It had not been spelled out in the evidence the judge had seen.
Third party renewal commissions
Under their old terms, Foxtons sought to charge renewal commission where the let property had been sold on. Because the above renewal conditions were unfair, it was conceded and held that this condition was a fortiori unfair.
Sale commission
Again, under their old terms only, the landlord was obliged to pay commission (of 2.5%) on the sale price if the landlord agreed to sell the property to the tenant, occupant or licensee. There was an obvious imbalance and it was not the sort of clause the consumer landlord would expect. It had not been sufficiently flagged and it was plainly unfair.
