Neighbour disputes can be amongst the most acrimonious (and expensive) type of legal proceedings. Needless to say they are of course best avoided. Sometimes a little planning and preparation before undertaking a course of action (for instance carrying out works, or even having a party or an event) can pay dividends in avoiding future difficulties.

From the legal point of view disputes often arise out of the following:-

• Works
• Noise
• Access
• Parking
• Rights contained (or not contained) in title documents such as leases
• Restrictive covenants
• ‘Nuisance’ – essentially things on one person’s property causing a legal ‘nuisance’ (which has a variety of legal meanings) to other property

With careful legal preparation some of these problems can be avoided or their potential effect neutralised.

For instance, if there appear to be legal problems with rights concerning your property the first port of call must be the title documents to establish the legal position. If this is unclear then sometimes an application for a declaration of the extent of the relevant rights from a court may be a more cost effective solution than waiting for problems to arise and then dealing with these over time, in a ‘drawn-out’ way that ultimately leads to proceedings.

Similarly, with leasehold properties lots of the problems that arise for both flat owners and landlords in practice could be avoided by a careful reading of the lease itself and making applications for permissions early on, or by investigating fully the extent of the available rights.

Even with freehold properties there can be restrictive covenants on the title which may prevent certain types of activity or development. Investigating the enforceability of these first can save certain headaches later on. After all no-one wants to demolish or reduce the size of an extension or addition to their property after it has been built.

The above of course says nothing of breaches of the myriad of statutory constraints applicable to works e.g. planning permissions, building regulations consents, noise control, electrical and gas safety, listed buildings and conservation areas.

Of course sometimes disputes cannot be avoided and in ‘emergency’ cases e.g. unauthorised works or, persistent breaches of your legal rights, very forceful measures (such as injunctions) may be required. Likewise, a proportionate but firm response to any actions which are causing problems will usually pay dividends in the longer term, particularly where the costs of proceedings themselves will later be decided by a court. Similarly, consideration should also be given to the question of whether mediation (or another form of less contentious dispute resolution process) might be appropriate.

In the unfortunate event that a dispute does arise, the first part of the solution is of course to find a team of advisors who understand the situation and can assist you in providing an appropriate and proportionate response.

The Dispute Resolution team at Bishop & Sewell LLP has put together a useful note about property disputes and how to avoid them which is based on their experience in successfully handling these sorts of issues. The note is free and can be obtained by emailing leasehold@bishopandsewell.co.uk.

If you would like to know more about any of the issues raised in this article by all means contact us.

Mark Chick

12.5.2010

If you are owed less than £5,000 then you may wish to issue court proceedings yourself so as not to incur substantial legal costs which can outweigh the value of any claim.  The court’s small claims process is aimed at individuals acting without legal representation. 

How do I start a claim?

Before you start the process, it is important to check that the debtor is worth suing.  If the debtor is a company then you should ensure you have the correct company name and provide the company registration number.  You can find this at: www.companieshouse.gov.uk.  Basic company searches are free. You can also check that the company is still in existence and has not been dissolved or struck off.

You will need to provide full details of the claim, the amount owed to you and ensure that you provide the exact details of the individual or company you are claiming the money from (‘the Defendant’).  If the Defendant is a company then you should ensure you have the correct company and provide the company registration number.  If the Debtor is an individual, you should consider trying to find out if he or she owns property or is in work or running a business.  It is not worth trying to sue a “man (or woman) of straw”!

There are two ways to start a claim in the county court; one is through the on-line procedure (http://www.moneyclaim.gov.uk).  Alternatively, you can print off the form (N1) from the court website, (www.hmcourts-service.gov.uk) fill it in and then take it to the court for issue. 

Once the Claim Form has been submitted to the court and the court issue fee paid, it will arrange for the Claim Form to be served on the Defendant.  The Defendant has a period of between 14 and 28 days from receipt of the Claim Form in which to file (i.e. to enter on the public official record at court) an Acknowledgement of Service and a Defence. If an Acknowledgement of Service is not filed, then the Defendant has a period of 14 days from receiving the Claim Form in which to provide a Defence. 

What do I do if the Defendant does not respond?

If a Defence is not received within either 14 or 28 days, you should complete the Request for Judgment form, which should have been sent to you by the court. You will need to send the form to the court requesting judgment to be given in default of a Defence.

What happens once the Defendant has provided a Defence?

If a Defence is filed, the court will provide “directions” which are steps both parties need to take to get the action ready for a hearing. This may include dates by which the parties are to exchange documents and in some cases the date by which witness statements are to be exchanged and submitted to the court. Depending on the court it may set the date for a hearing at the same time. If this does not happen it will notify the parties once a date has been set. Both parties will be required to attend the hearing. 

What happens at the hearing?

The hearing is relatively informal and will take place around a large table in the judge’s room with the judge sitting at the head of the table and the parties facing each other at the sides of the table.  As this procedure is aimed at individuals without legal representation, the judge will take an active role in the hearing and ask the parties questions.  After hearing both sides’ arguments, the judge will normally make a finding and read out the judgment.  Shortly after the hearing, the court will send to the parties the order that was made by the judge which may require one of the parties to pay the other party a specified sum of money. 

Will I get my costs if I win?

In a small claim, the court does not have jurisdiction to award any legal costs, but it can award limited costs for the attendance of any witness and the payment of disbursements which will usually include the court’s issue fee and any other fees that have been necessary to pay to the court throughout the proceedings. 

What do I do when I have an order for payment and the Defendant has not paid?

The English courts do not automatically enforce court orders and therefore if a payment is required and has not been paid by the date specified in the order, you will need to take enforcement action.  If an order does not state the date for payment, it is usually implied that 14 days from the date of the order is reasonable. 

What choices are there for enforcement?

Your choice as to the means of enforcement will depend on the information that you know or have obtained about the Defendant. 

• Charging Order – If the Defendant owns property, then you could seek to obtain a charging order on that property. A charging order is similar to a mortgage and secures the debt against the property.  The Debt may be repaid if the property is sold, or in certain cases (with a high level of debt) you may be able to apply to court for an order that the property be sold to repay the Debt.
• Attachment of Earnings - If you know that the Defendant is employed and you have details of their employer, then you could seek an attachment of earnings order. This requires the employer to deduct money from their employee’s wages and pay this to you.
• Third Party Payment Order - If you have the Defendant’s bank details e.g. from a cheque, then you can apply to the court for an order requiring the bank to pay you money from the Defendant’s bank account if it is in credit. This will not work if the Defendant’s bank account is overdrawn.
• Warrant of Execution – For a fixed sum debt, if you believe the Defendant has assets, you can apply to the court for an order authorising bailiffs to enter either a business or residential address of the Defendant, seize goods and sell them. However the Bailiff can only take certain goods and they must belong solely to the Defendant.  He cannot seize goods that are owned by someone else or are on hire purchase. 
• Insolvency - You may petition for the bankruptcy of an individual or the liquidation of a company if the debt is over £750 or £800. This is a complex area of law and a potentially expensive route to follow and legal advice should always be sought before embarking on such action.
• An order for information from the Defendant - If you have very limited information about the Defendant’s assets, then you can issue an application to require the Defendant (‘debtor’) to attend court and provide information about his/her personal circumstances.

"…due respect for adult autonomy suggest that, subject of course to proper safeguards, a carefully fashioned contract should be available as an alternative to the stress, anxiety and expense of a submissions to the width of the judicial discretion…"(para 27).

Thorpe LJ stated:

"In so far as the rule that such contracts are void survives, it seems to me to be increasingly unrealistic. It reflects the laws and morals of earlier generations. It does not sufficiently recognise the rights of autonomous adults to govern their future financial relationship by agreement in an age when marriage is not generally regarded as a sacrament and divorce is a statistical commonplace…" (para 29(i)).


Thorpe LJ explained further:
           
"Thus, pending the report of the Law Commission, in future cases broadly in line with the present case on the facts, the judge should give due weight to the marital property regime into which the parties freely entered. This is not to apply foreign law, nor is it to give effect to a contract foreign to English tradition…" (para 53).

The team explored the Schweizerland Mountains on the East coast of Greenland, north of Kulusuk, the second largest settlement for nearly 1,000 km radius with a population of 300 and no running water (or frozen water pipes). Temperatures as low as -35C were experienced, but thankfully only when the skies were clear and when the weather was otherwise most clement.

At least one mountain was summitted on each climbing day, a number of which were first ascents, and all of which offered magnificent views for an estimated 100 km. The reconnaissance element of the expedition paved the way for future expeditions and further geological and topographical surveying begun here.

Toby is a Fellow of the Royal Geographical Society and Fellow of the Geological Society, and would like to thank Greenland Expeditions and Jagged Globe for their invaluable input in making the expedition such a success.

This article is available in PDF format from the link below:

As from Monday 27 April 2009 the family courts will be open to the media as part of a government bid to increase the publics' awareness of how English and Welsh family justice works and to confirm the public's faith in the system.

Until now, with a few exceptions, neither the public nor the media have been allowed into the family courts in order to protect families, particularly children from intrusion into their privacy.  The trend towards more transparency has come from people aggrieved with the court process, such as fathers who allege that Judges are biased against them or parents who say that their children have been removed from them on the basis of unreliable expert or other evidence.

The new rules apply to all directions and final hearings but the media is not entitled to be present at any hearing "conducted for the purpose of judicially assisted conciliation or negotiations".

The media will be able to attend family hearings, but will not be permitted to report on the specifics of what takes place without risking being in contempt of court. The reporting will have to be of a more generalised nature commenting on the proceedings involved and the principles by which decisions are made.

In the words of Mr Justice McFarlane: "The role of a Journalist is seen as merely becoming informed so that they may discuss how the system works in a more informed way, and to permit their readers to understand the gist of proceedings, rather than the details of an individual cases".

It is anticipated, that most run-of-the mill family cases will not attract media interest and that only high profile cases will attract attention. The experience in New Zealand, where the media has been allowed to report in family proceedings, has shown that the media have little interest except in high profile cases.

Judges will consider whether the media should be excluded in some cases and they also have powers to relax reporting restrictions in individual cases or limit what can be reported to protect the welfare of children and families. An application by a party can also be made to exclude the media.

Examples of cases where the media can be excluded:

• Cases involving unrepresented vulnerable adults or children.
  
  
• Where a witness may not be willing to give less than full and frank evidence or refuse to give evidence at all.
  
  
• Where publication might endanger a party or persons connected with the proceedings.
  
  
• Where the court proceedings may disclose information about a company that is about to float.
  
  

Monika Pirani
020 7079 2407
mpirani@bishopandsewell.co.uk 

If you are concerned about Media Access please do contact either Michael Gillman (020 70792408, mgillman@bishopandsewell.co.uk ) or Monika Pirani (020 7079 2407, mpirani@bishopandsewell.co.uk ) to discuss your concerns.