When is a statutory Right Not a Statutory right?

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  • leaseholdanswers
    replied
    Indeed however they are likely to take the approach that it is a civil dispute with a criminal penalty, and not in the public interest to intervene.

    Why spend public money when a private citizen is prepared to spend theirs...

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  • 45002
    replied
    private prosecution

    Originally posted by leaseholdanswers View Post
    Counsel have confirmed that there is a right to issue a private prosecution in the Magistrates Court. So that stays. They will revert on the common law postion soon.

    I'm not expert,but CPS can take over private prosecution and carry on with the case or ask for the case thrown out,if they so wish ....


    http://www.cps.gov.uk/legal/p_to_r/p..._prosecutions/

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  • leaseholdanswers
    replied
    Counsel have confirmed that there is a right to issue a private prosecution in the Magistrates Court. So that stays. They will revert on the common law postion soon.

    Leave a comment:


  • leaseholdanswers
    replied
    Sigh thats an academic response LC. Briefings do occur as the law is a political product. A government keen to bring to an end a policy of spending and keen to preserve the viability of home ownership does not like to see decisions that work against it.

    While what you say in the second para is correct, however there is a common law principle that fills in the gaps and counsel are looking into that as given the wording of the 85 and 87 Act large and important chunks of it would be unenforceable.

    I confess that I have had time to read all the preceding decisions and agree that there is an issue over the availability of criminal proceedings ( though that hasn't stopped a magistrates court when I applied) and I wonder if that is the issue from the original application at the county court.

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  • Lawcruncher
    replied
    It is easy to see trends where none exist! Judges do not decide to start favouring one group against another. What may be discernible is trends in judicial thinking as to principles and how decisions are to be made.

    When it comes to statute imposing a duty the statute can do the following:

    (a) provide for it to be an offence to fail to comply with the duty;

    (b) provide a remedy for the person who is owed the duty if the duty is not complied with;

    (c) both of the above.

    If only (a) is provided for, (b) does not follow.

    An instance of (b) is section 4 of the L&T Act 1988:

    A claim that a person has broken any duty under this Act may be made the subject of civil proceedings in like manner as any other claim in tort for breach of statutory duty.

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  • leaseholdanswers
    replied
    Originally posted by Lawcruncher View Post
    I do not think there is any sort of conspiracy. Taking the law of landlord and tenant generally, there have been some "unexpected" decisions recently, and some have favoured tenants. What I think is happening is that the courts are identifying defects in statutory drafting and following what the statute says even where the clear aim of the statute is defeated.
    I can see your point however I make mine not simply as a practitioner and observer, but with colleagues friends etc who notice a similar change in the tide and a few who have been on the end of briefings and little chats with the "men from the ministry". Two have declined any further involvement except as representative for clients.

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  • Lawcruncher
    replied
    Originally posted by leaseholdanswers View Post
    ...something stinks in the Courts and they are actively undermining leaseholders rights.http://www.bailii.org/ew/cases/EWCA/Civ/2014/96.html
    I do not think there is any sort of conspiracy. Taking the law of landlord and tenant generally, there have been some "unexpected" decisions recently, and some have favoured tenants. What I think is happening is that the courts are identifying defects in statutory drafting and following what the statute says even where the clear aim of the statute is defeated.

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  • leaseholdanswers
    replied
    Originally posted by JK0 View Post
    Is Miranda going to court?
    Oh yes shes a teenage cat

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  • JK0
    replied
    Originally posted by leaseholdanswers View Post
    The arguments the CAT used
    Is Miranda going to court?

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  • leaseholdanswers
    replied
    Originally posted by theartfullodger View Post
    Hey, as someone once said to me, don't confuse the law with justice....
    But then thats a matter of equity this is simply a law that no one needs or must enforce.

    The arguments the CAT used dont stand up to analysis the Court should enforce a statutory requirement if asked, and cannot in my view say that a leaseholder has no right to make such a request when they are not simply someone benefiting or losing from that right, but a person entitled to that statutory right.

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  • theartfullodger
    replied
    Yes, I saw this, it was mentioned in Monday's

    Housing Law Bulletin - Issue 344 – 17 February 2014
    (Published on Monday, 17 February, 2014)
    summarised as...
    Landlord and Tenant Act 1985 section 21 entitles a tenant to require a landlord to supply a written summary of costs which will form part of a service charge. The landlord must comply with the request within one month. Section 22 entitles a tenant who has received such a summary to require the landlord to afford reasonable facilities for inspecting the documents supporting the summary. The Court of Appeal has decided that neither of these provisions can be enforced by a tenant in proceedings in the civil courts...
    weird, from Garden Court Chambers (worth subscribing IMHO..)

    Hey, as someone once said to me, don't confuse the law with justice....

    Leave a comment:


  • When is a statutory Right Not a Statutory right?

    I have reposted this in TAB as while its a leasehold matter, the outcome of the case is bizarre- you'd think that a law that creates a statutory right would be enforced by the Courts. well apparently not, and in this case no one has to.

    The Landlord and Tenant Act 1985 does 2 things

    1 on request tenants (that includes leaseholders) and an RTA or TRA have a statutory right to a summary of costs and for that to be certified by an auditor if more than 4 dwellings

    2 The landlord and superior landlords must provide same within one month or 6 months of the “year or period end” and failure to do so is a criminal offense

    With me so far, all pretty clear? Well apparently not.

    Although CLRA 2002 and the HA 2008 amends the LTA 1985 to require that the summary must (wait, keep reading) be produced and failure to do so allows a T to withhold their service charge, neither amendment has gotten a commencement date.

    So faced with an idiot landlord, (cue southern belle accent and flounce ) what is a tenant to do……?

    1: He asks the local council, as the Act provides, to enforce Act the criminal proceedings so that the landlord sends the paperwork

    2: He asks the local county court for an injunction

    3: He takes a criminal action in the local Magistrates Court.

    -Local councils plead poverty and disinterest and that half the time it is them failing to produce the summary, and a few will after pressure might raise themselves to do so e.g. Westminster
    -Now despite having successfully done 3 and the oft confused County Court saying “no we can’t, the High Court overturned that on appeal, so we can.

    Until last week.

    Morshead mansions a regular read of the profession has ended up in the Court of Appeal who now say “no” an individual leaseholder getting an injunction or being able to seek a criminal action.

    (cue southern sheriff in Cool Hand Luke) “Now what we have he-are” is a statutory right and a statutory obligation but no means of enforcing either as a tenant!

    “Something Stinks I tells ya”

    Given that the Upper Tribunal and the Higher Courts have been quite scathing of the LVT for looking beyond the claims made and evidence presented, how, as the CAT set out, can a T use other remedies when in effect they are barred from getting the raw information?

    While it is under appeal it is the law, Phillips v Francis has effectively capped spending by a landlord on ALL ( i.e. the sum total) of qualifying works to £250 if the rest is not subject to consultation. It therefore means that all T’s should simply force an uncooperative or idiot landlord to apply, or themselves apply, to the FTT.

    I am the first to accept that, and certainly would have not posted this earlier for obvious reasons, that the above s 21 and 22 rights lack robust means of being enforced. Happily, faced with this, most landlords and groups that members will deal with, will cooperate when presented with this.

    It is however a decision that lets the landlord off the hook and forces both into dispute so that the information, that parliament intended to be provided, be disclosed in litigation.

    I cannot accept the argument of the CAT that there is no damage to or a beneficial relationship under the Act when it is a statutory right. One would have thought that a statutory right would be understood and enforced but the Court but **** me it isn’t.

    These and related decision’s trends, Daejan aside, tell me that something stinks in the Courts and they are actively undermining leaseholders rights.
    http://www.bailii.org/ew/cases/EWCA/Civ/2014/96.html

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