The Pre-action Protocol for Debt Claims (“the Debt Protocol”) came into force on 1 October 2017. It applies to any debt claim where a business (including sole traders and public bodies) is seeking to recover payment of a debt from an individual debtor (including a sole trader). This new protocol will include arrears claims against lessees.
The aims of the Debt Protocol are to encourage early communication and exchange of evidence between the parties; to identify, clarify and narrow the issues in dispute; enable parties to avoid court proceedings either by agreeing a debt repayment plan or referring the matter to some form of Alternative Dispute Resolution. It also aims to encourage the parties to act reasonably and proportionately in relation to the size of the debt being sought; and, generally supports the efficient management of any proceedings which cannot otherwise be avoided.
Before issuing proceedings, the landlord needs to send a Letter of Claim to the lessee stating:
Unless the lessee has explicitly requested that correspondence should not be sent by post and has also provided alternative contact details, the Letter of Claim should be sent by post and can also be sent to an email address, if the landlord has one for the lessee.
What has changed now is the requirement to give the lessee 30 days to reply to the Letter of Claim before issuing court proceedings. If the lessee requests additional time to take independent legal advice, the landlord should allow reasonable extra time for debt advice to be obtained. If the lessee says that it requires time to repay the debt, the landlord and the lessee should seek to agree an instalment repayment plan, which is based on the lessee’s income and expenditure. If the landlord cannot agree or is not prepared to accept a lessee’s proposed repayment plan, it must explain reasons for its refusal in writing.
If the parties agree a debt repayment plan, and the lessee starts but then stops complying with such a plan, before issuing court proceedings, the landlord must send an updated Letter of Claim and comply with the Debt Protocol afresh. If a lessee has sent a Reply Form to the landlord but no debt repayment plan was agreed between the parties, then the landlord should give the lessee at least 14 days’ notice of its intention to issue court proceedings. Non-compliance with the Debt Protocol may be taken into account by the court when giving directions for the management of the proceedings and/or making orders for costs.
In summary, the landlord has to comply with the new Debt Protocol before issuing court proceedings against a lessee who is in arrears. The Letter of Claim must be more detailed than has previously been required and a number of documents need to be included with the Letter. If a repayment plan is agreed and the lessee does not stick to its terms, a landlord has to send another Letter of Claim before issuing proceedings. The lessee has 30 days to reply to the initial Letter of Claim and another 30 days should a second Letter of Claim be required. Whilst this is not a lessee’s charter to avoid payment all together, it may nevertheless cause significant delay for the landlord.
Karen Bright is a Partner in the Dispute Resolution team at Bishop & Sewell LLP
Should you require further advice on the new protocol and how to comply with it, please contact Karen via email on firstname.lastname@example.org or telephone 020 7631 4141.Landlord: I have an Order for Possession – what now?
Evicting a tenant is often a difficult and drawn out process for residential landlords. Of course, landlords must comply with requisite notice periods and issue proceedings (mostly in the County Court) with a view to obtaining a warrant of possession of the rental property; a process which often takes several months in itself.
Even after the warrant has been obtained, however, a residential landlord will often wait many weeks, if not months, for an appointment from a County Court Bailiff to attempt eviction, causing further losses.
To overcome this, many landlords have sought to transfer their possession proceedings to the High Court with a view to applying for a ‘writ of possession’ to be executed by one of the licenced High Court Enforcement Officers within a much quicker time frame.
To transfer the proceedings to the High Court, a landlord must:
Permission to issue a writ will not be granted unless ‘every person in actual possession’ of the land has ‘received such notice of the proceedings as appears to the court sufficient to enable the occupant to apply to the Court for any relief to which the occupant may be entitled’ (rule 83.13(8) CPR).
In the case of Secretary of State for Defence v Nicholas , it was held that ‘notice of the proceedings’ meant that the occupier must be served with the application for permission to issue the writ of possession. In practice, this meant that a tenant would be granted the opportunity to formally oppose the application and request a hearing for the application, which would cause further delays for the landlord and an increase in costs.
In the case of Partridge v Gupta, Mr Gupta (the landlord) successfully obtained a possession order requiring Mr Partridge (the tenant) to vacate the premises. Mr Partridge had defended those proceedings but was ultimately unsuccessful. As a result, Mr Gupta instructed a High Court Enforcement Officer to transfer the proceedings to the High Court and apply for a writ of possession with a view to prompt execution.
The proceedings were duly transferred to the High Court and the High Court Enforcement Officer issued a ‘without notice’ application to obtain a writ of possession, which meant that the application was not formally served on Mr Partridge. The writ was granted on 8 July 2016 and executed a few days later on 12 July 2016.
Mr Partridge attempted to set aside the writ of possession on the basis that he did not receive formal notice of the proceedings pursuant to rule 83.13(8) CPR and in accordance with the case of Nicholas . When his application to set aside was dismissed, Mr Partridge appealed the decision and the matter was referred to the Queen’s Bench Division of the High Court for consideration.
Whilst Mr Partridge argued that he ought to have been given formal notice of the application for a writ of possession, he accepted that he had been informed about Mr Gupta’s intention to apply for the writ of possession and that he knew that the claim had been transferred to the High Court for enforcement.
Justice Foskett dismissed Mr Partridge’s appeal. In particular, it stated that the rule did not require formal notice of the application for permission to issue the writ of possession. He stated that, whilst each case would turn on its own facts, it was generally sufficient for a more informal notice by letter or other communication that the application will be heard on a particular day or at a particular time. It was found that Mr Partridge had sufficient knowledge to enable him to apply for any relief that he may have been entitled. In the event, Mr Partridge did not apply for any relief and the writ of possession was valid.
The decision in the above case doubtless provides helpful guidance to landlords who are seeking to expedite the enforcement process in possession claims.
Anastasia Mavroudis is a Solicitor in our Dispute Resolution team.
If you are looking for assistance with regard to a property dispute matter, please contact one of our expert team on email@example.com or call 020 7631 4141.
Divorce & Pensions: Women left behind …
I have just read a report published by the Scottish Widow’s research team (see below). This report claims that more than half of married people would fight for a fair share in any jointly owned property and, yet fewer than one in 10 claim that they would want a fair share of pensions. In fact, the research shows that married people appeared to be more concerned about losing a pet during financial negotiations than sharing pensions.
The research goes on to state that this trend adversely affects women more than men and that generally women are less prepared for retirement than men, with only 52% having saved adequately. The percentage of men having saved adequately is a little higher at 59%.
However, divorced women are even less prepared. The figure is an astonishing 24% of women who have not saved anything into a pension. The statistic that I find most unbelievable is that currently 71% of divorced people do not even discuss pensions during divorce proceedings. What are their solicitors doing? Pension sharing as a financial remedy was introduced almost 20 years ago, and with clients of a certain age, it is often the most valuable asset after the matrimonial property. It is imperative that solicitors advise their clients about the possibility of pension sharing. This will sometimes result in the need for an expert actuarial report when you would like to compare income on retirement, as opposed to the cash value of the pensions at the time of divorce.
Louise Barretto is an Partner in our Family team.
If you have any queries about pensions on divorce or concerning family relationship and divorce matters more widely, please contact a member of our expert family team on firstname.lastname@example.org or call 020 7631 4141.Uber loses its worker-status appeal in Employment Appeal Tribunal
Do you use self-employed contractors in your business? If you do, then you need to know about the Uber judgment given today.
Uber has long claimed that its drivers are self-employed. This allows it to pay for services at a rate below the National Living Wage, and avoid deducting Income Tax and National Insurance Contributions. This arrangement is how Uber keeps its fares low, and its market share increasing. However, in November 2016 two drivers won a case against Uber asserting their worker status. Uber immediately appealed, and that appeal’s judgment was given today.
Uber’s appeal claimed that they were acting as agents for the drivers when passengers booked trips using the app. This would mean that the drivers could be self-employed contractors, but would allow Uber to control the terms of their contracts with passengers. They also claimed that the initial Tribunal judgment’s findings were inconsistent and perverse.
The appeal judgment was given today by Her Honour Judge Eady QC. Her judgment stated that despite Uber’s written documentation, the reality of the situation and the ‘true nature of the parties’ bargain’ was that the drivers were:
‘incorporated into the Uber business of providing transportation services, subject to arrangements and controls that pointed away from their working in business on their own account.’
The judgment also upheld the initial Tribunal’s findings as not inconsistent or perverse.
The link to the judgment is available here.
The Uber judgment means that the risk of contractors using the courts to assert worker status is now real. For businesses using self-employed contractors or engaging service companies, it means that they should review their arrangements to ensure that the commercial risk profile stays within the tolerances of the business. To do this, businesses need to take specialist tax and employment advice in tandem.
It’ll also mean that Uber’s fares will probably go up.
Uber’s driver arrangements were designed to skim as close to the IR35 line as possible. IR35, or the Intermediaries Regulations, are the rules that HMRC apply to determine whether someone is truly self-employed, a worker, or an employee. These rules aren’t conclusive: there are a series of factors that can point either way. Through our links with EY, we’ve had sight of the new 42-question test that HMRC is developing and we’re keeping up with the Government on the changes.
The Employment team at Bishop & Sewell LLP are frequent advisors on employee status issues, and regularly assist employment businesses and start-up services in staying profitable and on the right side of the law. Never assume –check. If you think your business is at risk, contact Andrew Humphrey, Head of Employment or email email@example.com
Promotions at Bishop & Sewell
We are delighted to announce two promotions for the firm: Helen Langworthy, Head of our Private Client team becomes a Partner and Michael Kashis, currently a Partner and Head of our Company Commercial team, now joins the Equity Partnership team, which comprises Stephen Bishop (Founder and Managing Partner), Michael Gillman (Senior Partner), Ossie Swaine (Partner), Nick Potter (Partner) and Mark Chick (Partner).
Helen Langworthy is Head of Private Client at Bishop & Sewell and joined the firm in 2011. She has extensive experience in dealing with all aspects of private client work including drafting wills, the administration of estates, the creation and administration of trusts and general lifetime tax planning for family wealth. Helen is also a Full Member of the Society of Trust and Estate Practitioners (STEP), a worldwide professional association for practitioners dealing with family inheritance and succession planning.
Michael Kashis joined Bishop & Sewell in September 2014 and leads our Company Commercial team. He became a Partner in 2016 and now joins our Equity Partnership team. Michael recently completed an executive MBA at Imperial College furthering his focus on both UK and international business and also increasing the scope of his advisory capability for both startups to more established businesses. His traditional work has spanned a wide range of corporate, commercial, capital market and financing transactions for both private and public companies, financial sponsors and investors/investees. Prior to joining Bishop & Sewell he worked in-house as a commercial lawyer in a variety of sectors including life sciences and natural resources.
We congratulate them both on the significant contribution they have made to the firm which now has 20 partners and whose full service remit runs across three core areas of Property, Commercial and Personal Legal Services.
These promotions follow on the back of a busy 2017 for Bishop & Sewell which merged with Fisher Meredith in the Summer which has increased the firm’s team of fee earners to over 50 across Residential & Commercial Property, Corporate, Private Client, Litigation, Immigration and Family, with an international reach via our membership of Pragma, an international network of lawyers and consulting firms.UK post-Brexit vision for EU citizens draws fire from MEPs
The government’s latest proposals for the future of EU citizens living in this country have drawn fire from the European Parliament, which claims there are still “major issues” with the UK’s approach.
The government’s newly published ‘Technical Note’ was intended to allay the concerns of EU nationals and their families but has been criticised by the European Parliament’s Brexit Steering Group.
In a statement published on Wednesday, the MEPs took issue with the “administrative procedures” set out in the document, arguing that EEA nationals and their families should not be subject to additional financial costs, and that the acquisition of “settled status” should be automatic.
The government’s ‘Technical Note’ adds little to its detailed proposals published in June 2017, when it first described its post-Brexit vision for EU citizens living in the UK. However, it does contain slightly more detail on possible procedures and costs.
Key elements of the government’s proposals, some of which are new and some of which simply reiterate previous statements, are as follows:
The document does not clarify what the “specified date” or “cut-off date” will be as this has yet to be agreed with the EU. It is expected to fall at some point between 29 March 2017 and our exit from the EU.
It is important to bear in mind that the contents of the document are still nothing more than the UK government’s proposals at this time, subject to the approval of our EU partners. To date, the EU’s response to Downing Street’s post-Brexit plans has been lukewarm at best.
In effect, the procedures and plans set out in the Technical Note will only come to pass if they can be agreed with the rest of the EU. Once that happens, they will form part of the official Withdrawal Agreement, the UK’s treaty with the rest of the EU. This will eventually form part of UK law.
However, this day is still a long way off and it remains to be seen whether the EU will accept the UK government’s stance on its citizens. The response of the European Parliament suggests these proposals are likely to meet with considerable resistance and may well be amended at a later date.
If and until the Withdrawal Agreement takes effect in UK law, EU citizens and their families will remain subject to existing provisions.
Karma Hickman is an Associate Solicitor in our Immigration team.
For advice and assistance on making a visa, immigration or nationality application or for any other immigration enquiry, please contact our Immigration Team on 020 7631 4141 or email firstname.lastname@example.org.
Mark Chick speaking at the PSG Conference in London on 7th November 2017
Mark Chick is speaking at the PSG Conference in London today providing a Leasehold Update and looking particularly at the Government’s recent consultation paper ‘Tackling Unfair Practices in the Leasehold Market.’
Mark has been involved in the consultation and has commented on this to the DCLG.
The talk is high topical given the recent focus on leasehold and today’s proposed Private Members Bill by Justin Madders MP.
If you have a query concerning leasehold property then please contact our expert team by emailing email@example.com.Chris Macartney speaking at the Landlord Investment Show – 7th November 2017
Members of the Landlord & Tenant and Property teams will be at the National Landlord Investment Show today at London Olympia.
This event provides a platform for current and prospective landlords to keep up-to-date with industry developments and provide access to a host of leading experts, suppliers and educational seminars.
Chris Macartney, Partner in our Landlord & Tenant Department will be speaking on the subject of ‘What to look for when buying a leasehold property as an investor’ in Seminar Room 2 at 14:10 and several members of the team will be on hand to answer questions.
For follow-up or queries please contact firstname.lastname@example.org or telephone 020 7631 4141 and ask to speak to a member of the Landlord & Tenant team.
Bishop & Sewell recognised in Chambers & Partners 2018 rankings
Bishop & Sewell is delighted to learn that the firm has been recognised in the 2018 edition of Chambers & Partners, a leading independent guide to the legal profession, in the following areas:
Chambers guides are the culmination of thousands of in-depth interviews by the largest research team of its kind and are trusted globally to objectively rank the world’s best lawyers and law firms. Announced annually each November and based on a series of client and peer interviews, the process involves ranking individual lawyers and firms in bands from 1-6 (with 1 being considered the best).
Across all our departments, we continue to see our solicitors consistently delivering an excellent and valuable service across our three core areas of property, commercial and personal legal services.