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Statutory Demands Court Orders Bankruptcy Insolvency

Statutory demands are usually issued as a strong arm tactic to obtain funds from someone as the fear of an impending bankruptcy petition usually works. The courts do not encourage their use as a means of enforcing a judgement. Today the debt has to be in excess of £5000 for a petition to be issued. The demand can be made on any of the available forms as this will not effect its validity. After the demands service, by a process server, 21 days have to be allowed to give the debtor time to either pay or negotiate a settlement to the satisfaction of the creditor. A petition for bankruptcy has to be served within 4 months of service of the demand. The debtor can if good reason exists apply to the court to set aside the demand within 18 days of it service. However if the sum demanded is that which has been ordered by a court to be payed to the creditor and the debtor has applied for permission to appeal in good time or an appeal is underway then:-

Rule 10.24(2) of the Insolvency (England and Wales) Rules 2016 provides:-

‘If the petition is brought in respect of a judgment debt, or a sum ordered by any court to be paid, the court may stay or dismiss the petition on the ground that an appeal is pending from the judgment or order, or that execution of the judgment has been stayed.’

This is an important defence and may be sufficient to deter even the most litigiously well resourced creditor. However it should be noted that the mere issuance of a bankruptcy petition by the court has the effect of a notification being sent by the court to the Chief Land Registrar who will make entries to the effect on any Land Registry entries that the alleged debtor may have (i.e. property ownership) which will also effect any charges e.g. by mortgagors that are registered. Therefore a bankruptcy does not have to be granted, when full restrictions will be notified to the Chief Land Registrar, for entries to be made to the register that may subsequently need to be removed.

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Service in Good Time – Service, Service how long should a service take to complete? Construction, Refurbishments etc. …

What is a reasonable amount of time to wait for a service?

A common consumer complaint has statutory constraints that it would seem timely to remind you of.

If a contract between a consumer and a supplier was entered into before the 1st October 2015 the Supply of Goods and Services Act 1982 applies. In particular section 14 provides:-

Section 14 Supply of Goods and Services Act 1982

14 Implied term about time for performance.

(1) Where, under a relevant contract for the supply of a service by a supplier acting in the course of a business, the time for the service to be carried out is not fixed by the contract, left to be fixed in a manner agreed by the contract or determined by the course of dealing between the parties, there is an implied term that the supplier will carry out the service within a reasonable time.

(2) What is a reasonable time is a question of fact.

If your contract was entered into on or after the 1st October 2015 then the Consumer Rights Act 2015 applies. In particular section 52 provides:-

Section 52 Consumer Rights Act 2015

52 Service to be performed within a reasonable time

(1) This section applies to a contract to supply a service, if—

(a) the contract does not expressly fix the time for the service to be performed, and does not say how it is to be fixed, and

(b) information that is to be treated under section 50 as included in the contract does not fix the time either.

(2) In that case the contract is to be treated as including a term that the trader must perform the service within a reasonable time.

(3) What is a reasonable time is a question of fact.

Analysis

Therefore the consumer has a right to redress in the form of damages in respect of the delay in the performance of a service by a contractor.

The seminal case or authority from which these statutes are derived is Charnock -v- Liverpool Corporation and Kirbys (Commercial) Ltd: 1968 CA. In this case a damaged car went into the garage for repair and it took 8 weeks to complete. The plaintiff sued for the delay and the Court found that it would have taken a competent contractor no longer than 5 weeks. The plaintiff was awarded damages in respect of hiring a replacement car for 3 weeks.

This case also clarifies that:-

i) It is the consumer, here the car owner, to whom the garage owes a duty of care in respect of the service offered rather than the paying insurance company.

ii) That it is incumbent on the contractor, in this case the garage, to inform the consumer immediately about any reasons why their order may be delayed so that they are free to take their business elsewhere. For example, an agreement that exists with a preferred supplier to carry out an order within a specified time period. It is common for contractors seeking to retain the client’s business not to inform the client of any such factors early on. However in such cases the untimely contractor is now caught by the Acts.

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“I’ve Been Disinherited By My Parents Will”

“I’ve Been Disinherited By My Parents Will” is a common cry for help we at the Solicitors Information Service have been hearing recently.

People unable to get onto the property latter and an ageing population with rising levels of dementia are the key factors boosting a rise in disputes over wills. The recent Supreme Court case Ilott v The Blue Cross and others has confirmed that a will should be left intact unless exceptional circumstances prevail e.g. as provided in the Inheritance (Provision for Family and Dependants) Act 1975.

Legal commentators have predicted a massive surge in court cases as people try and test out whether they have a valid claim.

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Commercial Litigation – Corporate Crime and Fraud

Prosecutions for commercial fraud are expected to rise this year due to a stronger commitment to bring proceedings under the Bribery Act 2010. It will be interesting to see how the offence of failing to prevent bribery is handled by both the prosecuting authorities such as the Serious Fraud Office and defendants alike.

The Criminal Finances Act currently forging its passage through Parliament, as a Bill, should bring some tantalising developments.

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Wills & Contentious Probate Disputes Highlight the Need for a Reputable Solicitor

Tanya Vasileva looked after her friend, Gertrude Stanley, in the years before her death at the age of 89.

Mrs Stanley, who had fled to London from the Nazis on the eve of the Second World War, believed she had no living relatives after her sister died in a concentration camp.

She promised her flat to Miss Vasileva in return for her years of care. After the widow’s death, in December 2009, she moved in.

But Mrs Stanley had not made a will, and a legal wrangle ensued after Peter Birchwood, a professional genealogist who has appeared on BBC series Heir Hunters, traced two distant cousins of Mrs Stanley.

Mr Birchwood, acting on behalf of Mrs Stanley’s estate, argued Miss Vasileva was a “trespasser” who should be ousted from the property and made to pay £50,000 for her years of rent-free occupation. But a judge ruled Mrs Stanley had promised the flat to her carer and said Miss Vasileva had “done her best” to look after the widow.

Judge Mark Raeside QC awarded Miss Vasileva £20,000 from the estate and dismissed Mr Birchwood’s financial claim against her. But he also estimated the value of the care provided by Miss Vasileva to be only £70,000, compared with the £160,000 value of the flat, and said she would have to leave by December so it could go back to the estate.

The High Court heard how Mrs Stanley fled Vienna and arrived in London in May 1939, when she was 19. She and her husband, Lawrence, lived together in their Belsize Park flat for 48 years, until his death in 1994. They did not have any children.

Despite her fortune, most of which was discovered in bank accounts and shares after her death, the widow lived a frugal existence and worried she would run out of money, the court heard. In 2002, the court heard, Mrs Stanley met Miss Vasileva at the supermarket where the younger woman worked. Miss Vasileva, who had moved to the UK from Bulgaria the year before, said they struck up a friendship after she delivered Mrs Stanley’s shopping.

After a stay in hospital in May 2005, Mrs Stanley phoned Miss Vasileva and asked if she could come to collect her. She did not want any professional carers and asked Miss Vasileva if she would help her stay in her own flat.

It was then that Mrs Stanley first said she wanted her friend to have her flat after she died — a promise she repeated many more times, the court heard.

Miss Vasileva looked after Mrs Stanley — including cooking, cleaning and helping her bathe — until she went into a care home in April 2009.

After the case Miss Vasileva said: “We weren’t just friends, we were more like grandmother and granddaughter, we were very close. She will always be in my heart.”

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Neighbour Disputes & Sir Paul McCartney

Neighbour disputes whether concerning party walls or boundaries can incur disproportionate legal costs if advice is not sought timely from a specialist practitioner in the field.

A recent battle occurred in St John’s Wood between two neighbours of Sir Paul McCartney in Cavendish Avenue. Clive Lewis a chartered surveyor lives at 3, Brenda Fenton lives at 5 whilst Sir Paul lives at 7.

Last month a judgment in Mrs Fenton’s favour handed down at Central London County Court ordered Mr Lewis to pay her £250,000 in costs and to make alterations to his house over a gutter leak that if fixed timeously would have cost him £7000. If you add Mr Lewis’s own legal costs (barrister and solicitor) he is now facing a bill of around £500,000.

Mrs Fenton was represented by a member of the barristers’ chambers that have the strongest reputation for property issues.

We at the Solicitors Information Service can recommend solicitors in London with proven expertise in the speedy resolution of such matters.

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Recent Cases & News Round-Up

Crime

Hate crime has gone up by more than 20% London in the past year. The rise is due to world events but also due to the fact more people are prepared to make these complaints today. About 32,000 more crimes of a violent nature have been committed.

In July where a record number of faith hate offences were made 95% were anti-semitic in the aftermath of Gaza being invaded by Israel.

These revelations come on top of these further London crime statistics:-

Religion, racism and homophobia attacks are up dramatically Faith related offences up 23% to 1048 Violent hate crime up 21% to 1140 Homophobic crime rose 21.5% = 100 cases a month with 175 reported in June alone Transgender hate crime up 86.2%, 58 to 108 cases Disability hate crime up 12.5% and racist and religious up almost 20%. Crime in Haringey up 38%, Barnet 31%, Kensington & Chelsea 31%, Redbridge 29%, Hillingdon and Bromley about 28%, Kingston 7.5% and Ealing 10%

However only 43% of criminal incidents are thought to be reported.

The police said that since October they have attended nearly 5300 premises visits, 400 alcohol test purchases, seized 400 weapons in 5000 sweeps, 3000 out of 160000 stop and searches had positive results e.g. weapon retrieval.

A 25% rise in domestic violence charges is likely to be made to April this year. There have been nearly 10,000 prosecutions from April to December this year which is up by more than 1000. The good news is that more than 65% have resulted in successful convictions with nearly 6500 either admitting/being found guilty over the last two quarters.

The UK taken as a whole paints a similar picture with just over 89,000 prosecutions expected by the first week of April, almost 20,000 more than the nearly 71,000 last year. A rise is rape proceedings is similarly reported.

Sexual violence has been described as being the worst in London for more than 30 years by the Metropolitan Police’s leading Commander.

Drinking whilst pregnant is not an offence

Three judges sitting in the Court of Appeal have recently ruled that if a woman drinks heavily during pregnancy and causes severe mental and/or physical deformity to her unborn child no criminal offence has been committed upholding an earlier ruling by the Criminal Injuries Compensation Authority.

Delayed birth delivery – £7,000,000 awarded by the High Court

A 6 year old boy suffering from quadriplegic cerebral palsy due to the lack of oxygen to his brain has won the above captioned award.

As he was in the breech position he was required to be delivered by Caesarean. However due to delays at the south east London hospital when his mother was actually attended to it was too late for it to be performed and a normal delivery ensued.

He will require the use of a wheelchair and is not expected to live beyond the age of 26.

Solicitors in London hope that proper training will be given to all maternity staff especially to sub-contracted midwives.

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Delayed Diagnosis £120,000 High Court Award

Chloe McCarthy a 12-year old born with a dislocated hip was awarded £120,000 by the High Court recently for her future care due to a hospital blunder which led to a delay in her diagnosis and treatment.

Due to the error caused by an East London hospital she had endured restricted leg movement, great pain and undertaken several bouts of surgery.

From birth she had suffered from developmental dysplasia of the hip which was only diagnosed in August 2002 after several administrative mistakes and therefore three months late. As a result she was unable to undergo a manipulation of the joint to realign it with the socket, a procedure known as an immediate closed reduction.

Her medical experts attest that she could have avoided any operations and a suspected hip replacement by the age of 40 and in fact made a complete recovery just by wearing a cast for a few months.

She was represented by solicitors in London.

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Banks Fined – Litigation Tsunami Expected

A tidal wave of civil litigation is in expected after City watchdog the Financial Conduct Authority (FCA) fined five banks a total of £1.1bn for rigging the £3.4trn-a-day foreign exchange market (forex) on the 12th November.

The five – Citibank, HSBC, JP Morgan Chase, Royal Bank of Scotland and UBS – can all expect to be hit by claims from clients including pension funds, foreign property owners and other foreign exchange houses, according to solicitors in London who have been quietly lining up litigants for the last two years.

A vital component of any successful action will be proving that a bank behaved in such a way that it profited at the expense of its customers.

The FCA statement said: ‘It is completely unacceptable for firms to engage in attempts at manipulation for their own benefit and to the potential detriment of certain clients and other market participants. Our final notices include examples where each bank’s trading made a significant profit.’

The final notices also all contain references to collusion between traders at different banks using online messaging and chatrooms. The FCA cites one example of such chatroom manipulation which netted Citibank a profit of £62,581 and another in which HSBC banked £102,425.

The notices could prove a boon for those bringing cases because they also contain examples of traders congratulating themselves after successfully manipulating forex rates. This, from one UBS trader, is typical: ‘The best fix of my UBS career’ – after he used a chatroom to move rates to produce a profit for £328,100 for UBS.

Chancellor George Osborne has said a share of the fines will be taken by the Treasury and ’used for the wider public good’.

Tracey McDermott, the FCA’s director of enforcement and financial crime, said: ‘Firms could have been in no doubt, especially after Libor, that failing to take steps to tackle the consequences of a free for all culture on their trading floors was unacceptable. This is not about having armies of compliance staff ticking boxes. It is about firms understanding, and managing, the risks their conduct might pose to markets.

‘Where problems are identified we expect firms to deal with those quickly, decisively and effectively and to make sure they apply the lessons across their business. If they fail to do so they will continue to face significant regulatory and reputational costs.’

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Category Archive Litigation

Statutory Demands Court Orders Bankruptcy Insolvency

Service in Good Time – Service, Service how long should a service take to complete? Construction, Refurbishments etc. …

“I’ve Been Disinherited By My Parents Will”

Commercial Litigation – Corporate Crime and Fraud

Litigation Litigation Litigation

Wills & Contentious Probate Disputes Highlight the Need for a Reputable Solicitor

Neighbour Disputes & Sir Paul McCartney

Recent Cases & News Round-Up

Delayed Diagnosis £120,000 High Court Award

Banks Fined – Litigation Tsunami Expected

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