Magdalen Chambers supports fundraising tribute to the Catherdral Yard Fire

Unique Exeter Painting Sold for Fire Fundraising

Bought for policeman who helped in the response to the blaze 

A painting depicting everyday life in Exeter’s Southernhay district has been auctioned to raise funds for a new cultural tribute after the Cathedral Yard fire. 

Property Search Group wanted to bring together the city’s law firms to raise money by commissioning and auctioning the painting, created by Devon artist and illustrator Sara Nunan.

Solicitors and colleagues gathered at the Mercure Exeter Southgate on Thursday (March 30) for the auction, conducted by TV’s Homes under the Hammer auctioneer Scott Gray.

The painting was won by 24-year-old Tom Backhouse, of TerraFirma, whose father Inspector Mark Backhouse, was involved in the emergency response to the blaze.

He said: “It’s an original piece of artwork and the money is going to a good cause which is the most important thing. I’ve never owned a piece of original art so that’s definitely a first. I was born in Exeter, my parents have lived in Exeter most of their lives, my dad works in the police force and was involved in the fire so it has a personal tie.”

The original was sold for £310, with an accompanying painting by Sara of Cathedral Yard selling for £320. Combined with donations from the 13 law firms for involvement in the painting, and the sale of limited edition prints, £2,620 was raised.

The money will go to the Devon Community Foundation for the cultural tribute, following the fire that destroyed the Royal Clarence Hotel last October.

Andy Towers of PSG, which provides conveyancing search services to legal firms across the region, said: “We’re thrilled that so many of Exeter’s legal firms have helped support a lasting legacy following the terrible fire in Cathedral Yard.

“I’m sure the cultural tribute will be a fitting tribute to remember what happened but also a positive statement about the future of the wonderful city of Exeter.”

The painting depicts a ‘day in the life’ of the area, traditionally the city’s legal hub adjoining Cathedral Yard. It features individual solicitors and colleagues from legal firms who have donated money – Browne Jacobson, Crosse and Crosse, Dunn and Baker, Everys, Foot Anstey, Ford Simey, Gilbert Stephens, Kitsons, Magdalen Chambers, Michelmores, Morgan and Pope, Stephens Scown and WBW Solicitors.

The solicitors and barristers are shown enjoying their hobbles and interests like surfing, playing golf, supporting Exeter Chiefs, horse riding, running and singing.

Scott Walker, of Devon Community Foundation, said: “The generosity of the Exeter community continues and this event was a very fitting way to draw to a close the Exeter Historic Fire Appeal.

“I would like to thank PSG, the Exeter Legal community and the winning auction bidders for their generosity. The money raised will enable us to carry out the community’s wishes, to use the remaining money to creating a culture tribute that recognises the historical importance of the buildings lost.”

The Fire Fund, administrated by Devon Community Foundation, has already raised over £20,000 and given grants to staff and small businesses affected by the fire. With the Fire Fund now coming to a close, money raised by the Southernhay Life campaign will go towards the creation of a cultural tribute, after a public vote run by the Foundation.

Fixing or Failing

A Review of the key points in the Government’s White Paper:
“Fixing our broken housing market.”

In the UK today there is a growing disparity between house prices and income.  This disparity has in turn to a doubling of the population living in the private rented sector since 2000. Teresa May’s Government signposted the solution as providing more homes which in turn it was said will lead to a reduction in the cost of renting. In February 2017 the Government issued a white paper with the intention of addressing the increasing disparity.

The main question to be addressed is what is causing the lack of new housing being brought forward in the UK today.  Government figures show that over 40% of local planning authorities (LPA’s) do not have a plan to provide sufficient housing that meets the projected growth in number of households within their area.  Developers claim that they cannot build these homes because LPA’s have restrictive planning policies that inhibit development.  Both sides of the argument blame the other but is it that simple?  Probably not.

Since March 2012 when the bombshell that was the National Planning Policy Framework (NPPF) was dropped developers have been able to point to paragraph 49 of the NPPF which states that:

“49. Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.”

So where an LPA cannot demonstrate an up to date five-year housing land supply, policies intended to control such development can be said to be out of date, even if that particular local policy has only been implemented in the very recent past.  As the developers state, without conflict with policy development should be permitted “unless other material considerations” dictate otherwise.  This has lead to a number of planning applications in areas defined in Local Plans as unsuitable but which represent prime locations for development.  So why have the floodgates not opened and a plethora of new houses been provided?  Perhaps, because the problem is not that simple.

Even if permission is granted it does not ensure that the development will then come forward promptly or even at all.  The annual completions versus permissions graph found on page 13 of the White Paper shows the increasing gap between permissions granted and those actually completed from a low in 2009-10 growing year on year from just over 150,000 to over 250,000 in 2015-16.  Comparatively, completions have only risen from just over 100,000 to just over 150,000 in that same period.  This is echoed in the July 2016 Government figures, which showed that while there were 684,000 homes with detailed planning permission granted, building work had started on just 349,000 homes.

Many reasons are put forward by all sides for this; developers point to onerous pre-conditions while LPA’s point to “land banking” of such permissions by developers while the market is stagnant.  The simple truth is probably that a number of reasons exist for the failure to bring forward and develop sites.  There are probably almost as many reasons for the failure of current housing policies as there are sites!

Something had to be done, on that almost all sides were agreed and so the Government having consulted has now brought forward the White Paper, “Fixing the broken Housing Market, February 2017, which contains a number of proposals to ‘fix’ the problem.  These proposals have been grouped into four headings or ‘steps’:

Step 1: Planning for the right homes in the right places.

Step 2: Building homes faster.

Step 3: Diversifying the market.

Step 4: Helping people now.

[Below I have raised some of the topics covered by each of these ‘steps’ but these notes reflect only a selection of the issues raised and are not intended to be exhaustive.]

 

Step 1: Planning for the right homes in the right places.

The Government has realised that as a result of paragraph 49 (see above) development in many areas is coming forward in locations that are not desirable to, either LPA’s, or the local population or ‘neighbourhood’.  This has to be tempered by the undeniable argument that more housing is required in most areas.  It is often said that the age of “N.I.M.B.Y.” (Not in my back yard), has been replaced by “B.A.N.A.N.A.” (Build absolutely nothing, anywhere, near anyone).  This stance of no development simply does not provide the homes the Nation requires for the future.

Since the 1970’s there have been on average 160,000 new homes per year but the consensus now is that we need between 225,000 and 275,000 new homes per year to keep up with population growth and to start to tackle the deficit created by years of under supply.

The argument that there is no space or that the country is “full” is simply not true. It is estimated that only 11% of England has been built on.

So we need new homes but we need them in the right places.  The White Paper attempts to tackle this issue in the following ways.

Plans & Neighbourhoods

In the White Paper the Government proposes to ensure that all LPA’s have up to date plans by enacting a requirement that all Local Plans be reviewed “at least once every five years.” Now this seems sensible but what will constitute a “review”? Does this mean an in depth review of all policies within a Local Plan or only those that have been called into question.  In the White Paper it states:

An authority will need to update their plan if their existing housing target can no longer be justified against their objectively assessed housing requirement, unless they have agreed a departure from the standard methodology with the Planning Inspectorate.”

However further on in the document it states that:

“1.13 The Government will, therefore, consult on options for introducing a standardised approach to assessing housing requirements. We will publish this consultation at the earliest opportunity this year, with the outcome reflected in changes to the National Planning Policy Framework.”

So any LPA currently under achieving in this area would be well advised to await developments as the goal posts in this area are clearly under review if not actually moving.

The White Paper also intends to make Local Plans easier to produce.  What the text actually says is that while LPA’s should ensure that all of their area is covered by a plan, Government intends to remove the requirement that this should be under a single plan.  Following the proposals in the Neighbourhood Planning Bill it would seem that the intention is that a single LPA could have a series of Local Plans covering different areas.

How this will work in practice remains to be seen.  Clearly areas set within the open countryside and those with limited Urban development may find it easier to “go it alone” than await input from the towns and cities where development issues maybe more pronounced.  Will that mean that there will be a race to produce such plans and thereby not be left with the burden of undesirable development? Time will tell.

Under the heading “Making enough land available in the right places” the White Paper attempts to deal with the biggest planning issue in modern times.  However the proposals contained within it are somewhat vague. They expect LPA’s to have a strategy to maximise the use of suitable land including re-utilising brownfield land placing more homes on public sector land, but these aims seem merely to reflect that which is already largely contained within the NPPF.  It continues with a stated aim of supporting small and medium sized sites especially within the rural community but again this merely echoes the main thrust of the NPPF for sustainable development.  Green belt protection is echoed and so is the requirement for neighbourhoods to have a greater say through neighbourhood plans.  Since over 270 neighbourhood plans have come into force since 2012 this is hardly ‘news’ or indeed a new solution to the existing problem.

Perhaps the only real development seems to be a wish to use land more efficiently.  As the White Paper states:

“1.51 Not all development makes good use of land, especially in areas where demand is high and available land is limited. London, for example, is a relatively low-density city especially in its suburbs. When people picture high-density housing, they tend to think of unattractive tower blocks, but some of the most desirable places to live in the capital are in areas of higher density mansion blocks, mews houses and terraced streets.” 

Whether this will represent an appropriate approach in more rural and regional centres is unclear.

In dealing with the possible biggest issue contained within the White Paper it appears that at present the issue is neither dealt with nor ignored.  The identification of the problem has occurred sometime ago the issue has always been ‘what is the solution’.

[The White Paper also states under this section that the Land Registry also intends to achieve comprehensive land registration by 2030.  One suspects that the Lands Tribunal will be busy for some years to come.]

 

Step 2: Building homes faster.

Under this section the White Paper does contain some distinct proposals.

Firstly it is proposed that the Government will amend the NPPF to give local authorities the opportunity to have their housing land supply (HLS) agreed on an annual basis, and then fixed for a one-year period. This is a positive and useful step for all concerned in housing supply.  Too often the failure of one scheme or a large windfall of housing can wrong foot either a developer or LPA at the last moment.  This leads to considerable indecision and a waste of costs on all sides.  Fixing the HLS for the year will at least provide all parties with a degree of certainty that can enable proper consideration of emerging sites.

Also where the White Paper clarifies and endorses the Written Ministerial Statement of 12th December 2016, that “where communities plan for housing through a neighbourhood plan, these plans should not be deemed out-of-date unless there is a significant lack of land supply for housing in the wider local authority area.”  Thus those areas that provide more than their fair share of new homes should not be penalised for failures of neighbouring areas.

In terms of the costs of planning there is definitely a sting in the new White Paper.  LPA’s will now be able to increase their fees by 20% from July 2017 if they commit to invest the additional fee income in their planning departments. The Government may also allow an increase of a further 20% for those authorities who are delivering the homes their communities need.  By which it is assumed that those LPA’s that have a 5 year HLS may be allowed to increase their charges by 40%!  Certainly the White Paper is welcome news for many beleaguered LPA planning departments.

Also the hitherto free access to planning appeals may be removed. The Government intends to consult on introducing a fee for making a planning appeal. One option being proposed would be for the fee to be capped, for example at a maximum of £2,000 for the most expensive route (full inquiry). All fees could be refunded in certain circumstances, such as when an appeal is successful, and there could be lower fees for less complex cases.

The White Paper also seeks to tackle the delay in planning permissions being implemented due to onerous pre-commencement conditions.  It suggests that in future pre-commencement conditions can only be used with the agreement of the applicant.  This seems to suggest that unless such a condition is being proffered by the developer such conditions are unlikely to be able to be applied by LPA’s.

The Government through the White Paper will also seek to simplify obligations under the Community Infrastructure Levy (or CIL as it is more commonly known).  What these ‘reforms’ are to be we are not told but apparently an announcement will be made in the Autumn Budget 2017.

Perhaps the biggest change to the forward delivery of housing is contained within the sections on “Sharpening local authority tools to speed up the building of homes” (para.s 2.39-2.46) and the ‘Housing delivery test’ (para.s 2.47-2.51).

Under the first of these, (the LPA’s tools), the Government intends to amend national planning policy to encourage LPA’s to consider how realistic it is that a site will be developed, when actually deciding whether to grant planning permission for housing development. This will include whether an applicant’s track record of delivering previous, similar housing schemes and can be taken into account by LPA’s when determining future planning applications.

Perhaps more importantly to developers is the intention contained in para. 2.41 which states:

“We are considering the implications of amending national planning policy to encourage local authorities to shorten the timescales for developers to implement a permission for housing development from the default period of three years to two years, except where a shorter timescale could hinder the viability or deliverability of a scheme.”

Clearly in this case the devil will be in the detail.  What would constitute ‘implementation’ would have to be considered.  At present very little is required to ‘implement’ a planning permission but should such ‘implementation’ be taken to include the required infrastructure for example, this will undoubtedly cause a rethink on certain projects.  It may well be that the get out clause of avoiding such shortened timescales under the heading of ‘viability’ may be a well trodden path.

The White Paper also proposes a “Housing delivery test.” This will be the developers response to the ‘improved’ powers of the LPA detailed above.  The test is intended to assess whether the number of homes being built in any particular area is below target.  If the numbers do fall below such a target the test will aim to establish the reasons why, and where necessary trigger policy responses that will ensure that further land comes forward.

Where under-delivery has been identified, the Government proposes a tiered approach to addressing the situation that would be set out in national policy and guidance, starting with an analysis of the causes for the delivery failure so that targeted action can be taken.  The proposed test is as follows:

 

  • “From November 2017, if delivery of housing falls below 95% of the authority’s annual housing requirement, we propose that the local authority should publish an action plan, setting out its understanding of the key reasons for the situation and the actions that it and other parties need to take to get home-building back on track. 
  • From November 2017, if delivery of housing falls below 85% of the housing requirement, authorities would in addition be expected to plan for a 20% buffer on their five-year land supply, if they have not already done so.
  • From November 2018, if delivery of housing falls below 25% of the housing requirement, the presumption in favour of sustainable development in the National Planning Policy Framework would apply automatically (by virtue of relevant planning policies being deemed out of date), which places additional emphasis on the need for planning permission to be granted unless there are strong reasons not to.
  • From November 2019, if delivery falls below 45% the presumption would apply.
  • From November 2020, if delivery falls below 65% the presumption would apply.”

The effect of this ‘test’ would be to require the 20% buffer only where the level provided falls below 85% of the requirement by 2017 so only those with less than 4 years and 3 months housing land supply would be caught.

Further the provision of section 49 of the NPPF (see above) would only apply to those who have less than 15 months supply from November 2018 rising to 27 months, (2 years 3 months), in 2019 and 39 months (3 years 3 months) in 2020.  It would seem that only those LPA’s who are seriously underachieving will be caught out.  Undoubtedly the reason for this approach is to ensure that development comes forward in line with agreed Local Policy unless there is a considerable local shortfall in housing land supply.

Overall the proposed changes seem to be a mix of developing sustainable targets supported by local policy and then supporting those policies through the planning system.  Where LPA’s are falling woefully short of housing supply the proposed changes will promote almost any development, anywhere.  Therefore it is beholdent to LPA’s to ensure robust housing land supply numbers supported by up to date policies.  In return the Government will then seek to ensure that those policies are respected and prevent the current ebb and flow of unsupported sites as developments come forward or are discarded.

 

Step 3: Diversifying the market.

The main thrust of this section of the White Paper is to encourage a greater diversity of house builders.  The Government is concerned that small builders have been declining and were hit hard by the recent recession, (the number of homes registered by small builders is down from 44,000 in 2007 to 18,000 in 2015).  To facilitate this diversity the Government launched the £3 billion Home Building Fund on 3rd October 2016, and continues the Housing Growth Partnership with Lloyds Banking Group. Other intentions are to support custom-build homes and bringing in new contractors through the Accelerated Construction programme.

The White Paper also seeks to support housing associations and local authorities to build more homes while also ensuring that the public sector plays its part. This will include changing the NPPF so that LPAs know they should plan proactively for Build to Rent where there is a need, and to make it easier for Build to Rent developers to offer affordable private rental homes instead of other types of affordable housing.

The Government also wishes to provide family-friendly tenancies of three or more years are available for those tenants that want them.

In recent times Housing Associations have achieved considerable success with 193,000 homes being built between 2011-15 under the ‘Affordable Homes Programme’.  This represented 23,000 homes above target.  To support housing associations to build more, the Government are planning to set out a rent policy for social housing landlords (housing associations and local authority landlords) for the period beyond 2020 to help them to borrow against their future income.  The Government also has confirmed that the 1% rent reduction will remain in place in the period up to 2020.

The White Paper also seeks to put social housing regulation on a more independent footing. The intention is to make the Social Housing Regulator a standalone body, (as recommended by the Tailored Review of the Homes and Communities Agency).  They, the Government, have also reiterated their position that housing associations belong in the private sector and they will be bringing the necessary deregulatory measures to allow them to be classified as private sector bodies.

LPA’s will also be encouraged to build on their own land.  The White Paper states that tailored support packages will be offered to Councils who want to build on their own land, through the new Accelerated Construction programme. They have also announced a new £45m Local Authority Land Release fund for land remediation and small-scale infrastructure, with priority given to innovative delivery models as well as areas of high housing need.

Whether these plans to diversify the type of house builder will correlate to an actual increase in the number of houses being built will be the acid test.

[One final point under this section is that the Homes and Communities Agency will be relaunched as Homes England with a clear, unifying purpose: ‘To make a home within reach for everyone’. What effect this change of name will achieve remains to be seen].

 

Step 4: Helping people now.

The Government and indeed everyone is aware that stepping onto the home ownership ladder is becoming increasingly difficult with the gap between the average wage and the average house price ever increasing.  Within the White Paper a number of measures are set out to address this issue and some of these are highlighted below:

Saving for a deposit 

In 2015 the Government introduced the Help to Buy ISA to boost the savings of prospective first-time buyers. It offers a 25% savings bonus, up to a maximum of £3,000, towards the purchase of a first home. More than 720,000 accounts have been opened to date and over 38,000 bonuses worth £20.5 million have been paid to September 2016, supporting over 27,000 home purchases. In April 2017, the Government intends to introduce the Lifetime ISA. This will support younger adults to save flexibly for the long term, giving them a 25% bonus on up to £4,000 of savings a year. Savings and the bonus can be put towards the purchase of a first home, or withdrawn once they reach the age of 60.

Help to Buy: Equity Loan 

The help to Buy Equity Loan was originally established in 2013 to support homebuyers and boost housing supply after the recession. Government has committed a further £8.6 billion for the scheme to 2021. 

Starter Homes

Starter homes will be targeted at first time buyers who would otherwise be priced out of the market. The NPPF will make it clear that starter homes, like shared ownership homes, should only be available to households that need them most, (i.e. those with an income of less than £80,000 (£90,000 for London)). Eligible first time buyers will also be required to have a mortgage in order to buy a starter home which is intended to stop cash buyers.  It is also intended that there will be a 15 year repayment period for a starter home so if the property is sold on to a new owner within this period, some, or all, of the discount will be repaid. This, along with the mortgage requirement, will reduce the risk of speculative investors buying into the market and thus ensure there will be more affordable homes available to those that need them whilst allowing home owners to move onwards when the time is right

There is also a stated intention to amend the NPPF to introduce a clear policy expectation that housing sites should deliver a minimum of 10% affordable home ownership units. It will be for local areas to work with developers to agree an appropriate level of delivery of starter homes, alongside other affordable home ownership and rented tenures.

The White Paper also seeks to change the NPPF so as to allow more brownfield land to be released for developments especially those with a higher proportion of starter homes by:

“a) bringing forward more vacant, unviable and unused employment land by introducing new rules for retaining employment land. We will make it clear that any proposal on employment land that has been vacant, unused or unviable for a period of five years, and is not a strategic employment site, should be considered favourably for starter home-led development.

b) extending the current starter home exception site policy to include other forms of underused brownfield land – such as leisure centres and retail uses – while retaining limited grounds for refusal;

c) allowing development on brownfield land in the Green Belt, but only where it contributes to the delivery of starter homes and there is no substantial harm to the openness of the Green Belt.”

The White Paper also seeks to clarify that starter homes, with appropriate local connection tests, can be acceptable on rural exception sites. This will be seen as a welcome exception in many rural areas where the lack of low cost and affordable housing is altering the demographic of rural inhabitants so that the available work force in some areas is critically low.

Other measures proposed will include:

  • Extending Right to Buy discounts to housing association tenants.
  • New homes for Shared Ownership, Affordable Rent and Rent to Buy
  • A fairer deal for renters and leaseholders
  • Reviewing Leasehold.

Finally the White Paper supports the Local authorities through the existing powers and incentives to tackle empty homes. Through the New Homes Bonus Councils can earn the same financial reward for bringing an empty home back into use as building a new one. They also have flexibility to impose a council tax premium of up to 50% (on top of the council tax bill), on properties that have been empty and substantially unfurnished for more than two years.

 

Conclusion

The contents of the White Paper, if brought into legislation will have some profound effects on the way both developers and LPA’s view the future provision of housing.  While undoubtedly the current system was failing in some regards many of the proposed changes are bold new initiatives that have yet to be tested in reality.  Perhaps the ‘hydra’ or many headed, approach to tackling this issue was always going to be complex to reflect the numerous problems facing both industry and local government.

Is the White Paper a fix or a fail? The truth is probably a bit of both.  Some of the steps to release land and to simplify development will work but whether the intended flood of new homes will be facilitated by these measures only time will tell.  Certainly some of the proposed changes within the White Paper will highlight where the failure to provide new homes is occurring.  However just as some problems will be solved by these initiatives others will arise.  Overall the White Paper does address some of the issues but whether those solutions prove to be anything more than a sticking plaster will have to be reviewed through hindsight. Perhaps the truth is that we simply cannot fail to fix this increasing problem.

[Any errors factual, grammatical or typographical remain the fault of the author)]

Gavin Collett

Magdalen Chambers

3rd April 2017

[Any issues or question arising please do not hesitate to contact the author through his Chambers (01392) 208484].

Employment and Criminal Law- an odd mix or the perfect partnership?

Employment and Criminal Law- an odd mix or the perfect partnership? I am often asked why I specialise in two such different areas of law. The obvious answer is that I am good at both and I enjoy both, but the more important answer is that they complement each other very well. Not just in the skill set required in the techniques of advocacy and client handling, but in the very facts of the cases and the essence of the law. For example, what happens when a departing employee takes with them confidential or sensitive information? What about harassment in the workplace that falls outside the usual discrimination provisions? In this article I briefly set out some legislation from the criminal law, which is of increasing use to deal with workplace issues.

Private Prosecutions- infrequently used:

A ‘private prosecution’ is a prosecution started by a private individual, or entity who/which is not acting on behalf of the police or other ‘prosecuting authority’, this includes, but is not limited to, an entity that has a statutory power to prosecute, such as the Information Commissioner’s Office (‘ICO’). Private prosecutions can be brought by companies as well as individuals. The RSPCA and Virgin Media are recent examples of such.

The right to bring private prosecutions is preserved by section 6(1) of the Prosecutions of Offences Act 1985, which states: ‘(1)… Nothing in this part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director’s duty to take over the conduct of proceedings does not apply.’

However, the Director of Public Prosecutions (‘DPP’) has the power under section 6(2) to take over any prosecution. The Crown Prosecution Service (‘CPS’) will take over and stop a case where they consider that there is no realistic prospect of conviction, or that prosecution would not be in the public interest. Therefore it is of vital importance that a potential prosecuting authority continually reviews the available evidence to ensure that the prosecution is in the public interest and that the threshold test is met.

Furthermore, in some cases the private prosecutor must seek the consent of the Attorney General or DPP before the commencement of proceedings.

Alternative causes of action to breach of contract or an injunction:

As an employment lawyer I know the importance of a well-drafted, and therefore enforceable, confidentiality clause in a Contract of Employment, affording the employer the option to sue for damages for breach of contract or apply for an injunction. But as a criminal lawyer I know that there are other and less frequently used options.

Taking information, which contains personal data, such as records, can constitute a criminal offence under section 55 of the Data Protection Act (‘DPA’) 1998; however a prosecution may only be made under the DPA with the consent of the ICO or the DPP.

Section 1 of the Computer Misuse Act (‘CMA’) 1990 makes it an offence to cause a computer to perform any function with the internet to secure access to any program or data held in any computer the person is not authorised to access. An offence under this section is punishable by a fine (unlimited for offences committed after 12th March 2015) or imprisonment (of up to two years) or both.

If, whilst copying confidential or sensitive information, the defendant erased or otherwise altered the original files, this can amount to criminal damage. Section 1(1) of the Criminal Damage Act 1971 states: ‘A person who without lawful excuse destroys or damages physical property belonging to another intending to destroy or damage such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.’ Alternatively, erasing the information can amount to theft contrary to the Theft Act 1968, if the defendant dishonestly appropriates property belonging to another with the intention to permanently deprive the other of it.

Finally, a defendant commits fraud by abuse of position pursuant to section 4 of the fraud Act 2006 if he occupies a position in which he is expected to safeguard, or not act against, the financial interests of another person, dishonestly abuses that position, and intends by his actions to make a gain for himself or cause loss to or expose another to a risk of loss.

Criminal sanctions for harassment:

What happens where there has been harassment, which is not discrimination under the Equality Act 2010 due to the absence of a protected characteristic, such as age, disability, sex, race, etc? What if the harassment does not culminate in a resignation affording the employee recourse in the tribunal for constructive dismissal?

Once again, the criminal law may have an alternative course of action under either the Protection from Harassment Act 1997, the Malicious Communications Act 1988, or the Communications Act 2003.

Section 1 of the Protection from Harassment Act 1997 provides: ‘(1) A person must not pursue a course of conduct- (a) Which amounts to harassment of another and (b) Which he knows or ought to know amounts to harassment of the other. (2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.’

Section 3 (1) of the Act provides: ‘An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.’

A course of conduct is conduct on at least two occasions (section 7 of the Act) which is targeted at an individual, calculated in an objective sense to cause distress and which is objectively judged to be oppressive and unreasonable. The conduct that constitutes harassment in a workplace setting was explained by Lord Nicholls in Majrowski v Guy’s & St Thomas’s NHS Trust [2006] UKHL 34 at paragraph 30 after discussing vicarious liability: ‘where the claim meets that requirement and the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day to day dealings with other people. Courts are well able to recognise the boundary between conduct, which is unattractive, even unreasonable, and conduct, which is oppressive and unacceptable. To cross the boundary from regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2.’

This position was reaffirmed by the Court of Appeal in Conn v Sunderland City Council [2007] EWCA Civ 1492 in that for a civil claim to succeed the conduct must satisfy section 1 and, by virtue of section 2, must constitute a criminal offence. In relation to a claim under the Protection from Harassment Act 1997 the limitation period is six years.

For written harassment or bullying, there is another potential remedy under section 1 of the Malicious Communications Act 1988 for communications, which are grossly offensive, indecent, obscene, menacing or false, provided there is in each case an intention to cause distress or anxiety. The offence is committed with the sending or transmitting and does not require the message to reach the intended recipient. In Connolly v DPP [2007] 1 All ER 1012 LJ Dyson stated that the words used in the statute are the ‘ordinary English words not used in a special sense’. He went on to say (obiter) that the protection definitely applies to communications sent to people in the workplace.

Under section 127 of the Communications Act 2003, there is a similar provision for any messages sent via a public electronic communications network, and following explanation in Chambers v DPP [2012] EWHC 2157, that the offence can occur using Twitter and it seems would also apply to services such as Facebook or LinkedIn. Therefore as it can be seen there is in fact a close synergy and inter-connectedness between these two seemingly different areas of law.

A knowledge of both is a useful tool. I have 11 years experience and have developed this niche practice as a specialist in both criminal and employment law and I welcome instructions in cases in either area, or in cases where there is a cross over between the two. Please contact my clerks for more information.

Sarah Hornblower – March 2017

Dan Dyson Led by Neil Hext QC succeeds in Court of Appeal

CHANNON V WARD [2017] EWCA Civ 13

The Court of Appeal has held that a negligent broker who failed to place PI insurance for his accountant client had caused no loss as the notional insurer would not have accepted the claim made by the accountant due to the particular facts underlying his claim.  The judgment can be read here: http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2017/13.html&query=(channon)+AND+(v)+AND+(ward)

In particular Lord Justice Tomlinson considered that:

“The insurers would, as the judge found, have recognised that the investors had been advised to “shoehorn their commercial claim against MHP into a professional negligence claim in order to tap into Mr Channon’s PII cover”. The pithy but apt language is again that of Mr Dyson.” (para 40)

In addition to the central issues in the appeal, the Court of Appeal also considered circumstances in which parties to a settlement cap a Defendant’s liability for the purposes of that settlement only to subsequently obtain a judgment by consent in excess of that amount (see in particular paragraph 17).

The appeal follows on from Dan Dyson’s successful first instance result at trial see: Channon v Ward [2015] EWHC 4256 (QB) which can be read here: http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/QB/2015/4256.html&query=(channon)+AND+(v)+AND+(ward)

Dan Dyson has a broad commercial practice including property matters.

Permission granted for Second Appeal in Landlord and Tenant Break Clause Case

Court of Appeal Grants Permission for Second Appeal in Landlord and Tenant Break Clause Case

Lewison LJ has granted a tenant permission to appeal in a case concerning the correct construction of a break clause in a residential letting and the application of sections 21(1A) and 21(1B) of the Housing Act 1988. In particular the case is concerned with whether the express terms of certain starter tenancies used by social landlords require service of a notice complying with section 21(1B) of the Housing Act 1988.

The appellant is represented by Russell James of chambers who specialises in all areas of landlord and tenant and property litigation.

Article 8 – the right to respect for family life

Practitioners will of course be familiar with Article 8 and the right to respect for family life, which touches on everything in the jurisdiction of the Family Court.

The formula settled upon to reflect consideration of Article 8 in judgments has tended to focus on necessity and proportionality, with an occasional reference to there being no lesser measure available to protect a child’s rights.

The Immigration and Asylum Tribunal has been at the forefront of the development of a more detailed assessment of Article 8 in the context of the removal of foreign nationals to their country of origin. The classic tests were set out by the House of Lords in R (Razgar) v Secretary of State for the Home Department 2004 UKHL 27:

In a case where removal is resisted in reliance on article 8, these questions are likely to be:

  • Will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life?
  • If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
  • If so, is such interference in accordance with the law?
  • If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
  • If so, is such interference proportionate to the legitimate public end sought to be achieved?

In Hashim Ali v Secretary of State for the Home Department 2016 UKSC 60, the Supreme Court had reason to consider the Article 8 tests again in the context of the deportation of foreign criminals, the Immigration Rules and Article 8.

What may be of interest to family practitioners is the recasting of the Article 8 test. The Supreme Court did not refer to the classic formulation in Razgar but said this:

The Supreme Court considered paragraph 74 of Bank Mellat v Her Majesty’s Treasury (No. 2) [2013] UKSC 39 which sets out the proper approach to assessing proportionality. In immigration cases, this approach is likely to qualify the Tribunal’s approach to the last two Razgar questions.

  1. The judgment of Dickson CJ in Oakes provides the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning. Its attraction as a heuristic tool is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit. The approach adopted in Oakes can be summarised by saying that it is necessary to determine
  • whether the objective of the measure is sufficiently important to justify the limitation of a protected right,
  • whether the measure is rationally connected to the objective,
  • whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and
  • whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.

The first three of these are the criteria listed by Lord Clyde in De Freitas, and the fourth reflects the additional observation made in Huang. I have formulated the fourth criterion in greater detail than Lord Sumption, but there is no difference of substance. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.

For the family practitioner, the changes, if they are changes, to the recasting of the Article 8 tests may lead to little change in the content of judgments. Outcomes may not be significantly affected. However, the change in language is of some importance and is undoubtedly relevant to ancillary procedural issues in the Family Court, for example the sharing of confidential information between agencies. Although outside the scope of this note, practitioners may wish to consult John Fotheringham’s article in Family Law November 2016 1342 on the Named Person Service and the Supreme Court’s decision in The Christian Institute and others v The Lord Advocate 2016 UKSC 51 for an example of the application of the test.

 

Rupert Chapman

Sharing Offshore Pension Assets Revisited – UK Courts Unable to Share Foreign Pensions

In the latest judgment in the long running case of Goyal, Mostyn J has concluded that the pension sharing provisions contained in section 24B of the Matrimonial Causes Act 1973 cannot be used to share a foreign pension scheme, contrary to the view of the Court of Appeal in the same case.

The Court of Appeal, in a judgment reported as Goyal v Goyal [2016] EWCA Civ 792, had given guidance on the issue, while also addressing another issue relating to the making of injunctions in support of such orders.

The application for financial remedies was brought by Mrs Goyal after a marriage of 8 years. The proceedings lasted for 4 years and involved 65 separate hearings before the Court of Appeal dealt with the matter. A final hearing took place in November 2015 where the husband (a successful banker) was found to have gambled away more than £500,000. The Judge concluded that the entirety of the remaining assets should be provided to the wife for her and the parties’ child’s needs, on the basis that they were likely to be dissipated if transferred to the husband.

The husband had agreed in an earlier order to a pension sharing order in Mrs Goyal’s favour in relation to two pensions held in the UK. He later claimed that he had, before the order, cashed those pensions and used the monies to pay debts. In fact he had transferred the funds to an annuity policy in India, from which an income was being paid into an undisclosed bank account in his name, facts which he had not only withheld but also denied in the face of a specific question.

The Judge at first instance concluded that he was unable to make a pension sharing order in relation to the fund as it was held offshore. He did consider, however, that he had the power to order the husband to transfer the policy to the wife and to pay the income to her. Though the Judge did not explicitly indicate the jurisdiction for this order it was agreed on appeal that the only possible route was an injunction under s.37 of the Senior Courts Act.

The husband appealed on the basis that the court was unable to make a pension sharing order in relation to an offshore fund and therefore could not make an injunction to circumvent that lack of power, as such orders could only be made in support of an existing power.

The Court of Appeal’s view was that the second argument – the lack of power to make injunctions other than in support of an existing power – was plainly made out. The court did not retain a jurisdiction to make whatever orders it considered necessary to do justice between the parties. The statutory regime sets out the available orders and the Senior Courts Act compliments rather than expands it.

On the first point, however, the court considered that the Matrimonial Causes Act is not so limited as the Judge had assumed. The Act applied to any ‘specified pension arrangement, which includes ‘an annuity or insurance policy purchased, or transferred, for the purpose of giving effect to rights under an occupational…or personal pension scheme.’ As the offshore annuity scheme was purchased using the funds from an onshore personal pension scheme it was possible for a pension sharing order to be made. It was accepted by the husband’s counsel that an overseas scheme ‘may satisfy the criteria for the making of a pension sharing order” (paragraph 29) and that there was no territorial limitation on the court’s power to make a pension sharing order. It was observed that in individual cases it may not be possible to enforce such orders abroad, which issue might require expert evidence and correspondence, through the usual procedural avenues, with the provider. The point was not fully argued, however, the parties accepting that the jurisdiction was not so limited. The wife had not undertaken those investigations and so the court discharged the Judge’s orders and listed the case for a hearing before another Judge. That hearing was listed before Mostyn J.

Mostyn J heard the matter on 17th October 2016 and his judgment can be found reported as Goyal v Goyal [2016] EWFC 50. The husband’s application was that the court should dismiss the wife’s claim for a pension sharing order for lack of jurisdiction and because of the lack of any evidence that such an order would be enforced by the Indian courts. The husband’s counsel indicated that he had accepted that there was such jurisdiction based on the notes within the Family Court Practice 2016. The Court of Appeal accepted this without argument and the relevant passage was obiter dictum and therefore open to Mostyn J to reconsider the position.

Having invited written representations from Resolution and the Family Law Bar Association the court undertook a detailed analysis of the statutory provisions and of the general constitutional background. The court noted that it is a basic rule of statutory interpretation that parliament cannot bind a jurisdiction over which it is not sovereign, in the absence of some provision within that other jurisdiction to give effect to the statute.

While a property adjustment order can be made in relation to foreign property where there is clear evidence that the foreign court would enforce it, the judge was not so persuaded in relation to the provisions of s. 24B. property adjustment orders are in personam – they apply to bind the person subject to the order and not the property itself, unlike a pension sharing order, which binds a particular piece of property held by a third party. While it was not explicit in the statute, the presumption against extra-territorial effect applied and the court was unable to make a pension sharing order in relation to any foreign pension.

The judge considered, however, other routes by which the same result could be achieved. One route was to incorporate an agreement within the order, backed by undertakings, to obtain an order in the foreign jurisdiction where one is available (such as the USA). This would require evidence that the foreign jurisdiction would agree to such an order. This route was not available to Mrs Goyal as she had failed to provide any evidence for the court that the Indian Court would make any sort of order.

Another would be to make an order under s. 24(1)(c) of the 1973 Act for a variation of settlement in relation to the pension (see Brooks v Brooks [1996] AC 375). There was some argument that this route too would be blocked by the presumption against extra-territorial effect, however that was a matter not before the court and so was not decided. This route was not available to Mrs Goyal as the court had previously dismissed her claims for property adjustment and financial provision orders.

The court could, however, make an order for periodical payments in the full amount of the annuity. That order could be accompanied by a legitimate injunction requiring the husband to receive the maximum amount and to pay it to the wife. These issues were adjourned for a further hearing on a later date.

It can be concluded then that, subject to any further appeal, the court is unable to make a pension sharing order in relation to any foreign pension scheme but can only either;

  • Include in an order an agreement, supported by undertakings, that the parties will obtain such an order in the jurisdiction where the pension is held, provided that there is evidence that such an order is possible,
  • Make a variation of settlement order in relation to that pension, providing there is evidence that such an order will be enforced, or
  • Make a periodical payments order, supported by injunctions to ensure that the monies are paid and that the pension (if in payment) is taken in full.

Members ranked in Chambers and Partners 2016

Michael Berkley
Exeter-based practitioner with significant experience. His chancery practice includes probate and wills work, property disputes and contentious trusts.
Strengths: “If someone said: ‘I have a chancery problem and need an Exeter barrister,’ I would give Michael’s name.”

Christopher Naish

Has a broad practice, acting for guardians, parents and local authorities on private and public children law matters, as well as being able to handle complex financial remedy cases.
Strengths: “Christopher Naish is very highly experienced and has a wealth of knowledge of family law. He also is very good at establishing a good relationship with clients and putting them at their ease.” “A commanding presence, with good attention to detail, and great in cross-examination.”

Carol Mashembo

Has a diverse family practice encompassing cohabitation disputes, financial remedies and private children law. She has over 15 years’ experience and is used to handling cases that involve dealing with litigants in person.
Strengths: “Good at looking at the wider picture, being pragmatic and finding the best solution for clients.” “Extremely impressive – she’s strong, sensible and very insightful. Her advice on when to fight and when not to fight undoubtedly helped the client enormously.”

The Right Warrant: Issuing Warrants Following the Breach of A Suspended Possession Order.

The Court of Appeal has recently given judgment in the case of Cardiff CC v Lee (Flowers) [2016] EWCA Civ 1034, which is concerned with the correct application to be made for a warrant for possession where there has been a breach of a suspended possession order (‘SPO’). It is not a simple application on Form N325 (request for warrant of possession of land) – that is appropriate where an outright possession order has been made. Instead, an application must first be made for permission to issue a warrant in accordance with rule 83.2 of the Civil Procedure Rules. Such an application may be made in accordance with Part 23 and may be made without notice being served on the tenant.

This decision is of great significance because the general practice until now has not been to make such an application. The Court of Appeal observed that rule 83.2, which was introduced in 2014 to “address what might reasonably have been considered to be a weakness of the system, namely that there was no judicial scrutiny of the landlord’s case that the conditions had been breached” (paragraph 3), requires a two stage procedure: application for permission followed by application for a warrant (paragraph 9). In giving the judgment of the court, Arden LJ stressed that this rule provides “an important protection for tenants” (paragraphs 23 and 31), where the landlord has to show that it has “informed the court (among other matters) that the appellant had breached the terms of suspension” (paragraph 9).

The main focus of the appeal in Cardiff CC v Lee (Flowers) [2016] EWCA Civ 1034 (it having been conceded that rule 83.2 was the correct rule) shifted to whether the circuit judge was correct to dismiss the tenant’s appeal notwithstanding that no application for permission had been made in accordance with rule 83.2. The Court of Appeal held that he was. The District Judge at first instance had on the facts of that case, held a contested hearing at which the issue of whether there had been a breach had been considered along with any other arguments advanced by the tenant. The Court of Appeal relied upon rule 3.10 of the Civil Procedure Rules (an error of procedure does not invalidate a step in proceedings unless the court so orders, and can be remedied by the court), and rule 23.3(2)(b), which allows for the dispensing of an application in form N244, in coming to this conclusion. However, this does not provide carte blanche for the future for landlords to avoid following the correct procedure. The Court of Appeal placed heavy reliance in that case on the fact this was a genuine mistake, the social landlord did not know it was entitled to proceed as it had, and the fact that all issues had been considered by the judge in any event. Such a situation is unlikely to be available in the future because social landlords should be aware of this decision and Arden LJ said: “Social landlords must ensure that from now on their systems are such that the same mistake will not be made in the future.”

Some Brief Observations

It is now clear that permission needs to be sought from the court following an allegation of breach of an SPO and the court must consider whether there has been a breach before granting permission. However, the fact that this can be made without notice to the tenant and without a hearing potentially, I think, opens a can of worms. If a District Judge were to do this then they would presumably need to give the tenant the right to set aside the permission that had been given in accordance with the Civil Procedure Rules. My view (and it is just a view) is that the way forward is to make provision in future SPO’s for this procedure, in the same way that previously occurred in the old PPO’s. It strikes me that this would be of benefit to both parties as it allows everyone to know in advance what procedure will be followed in the event of a breach.