A Practical Guide to Non-Party Costs Orders – Author Charles Shwenn

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Chambers would like to congratulate Charles Shwenn on the publication of his book by Law Brief Publishing: A Practical Guide to Non-Party Costs Orders. This is a valuable tool for practitioners as well as companies, insurers and commercial litigation funders. Family practitioners who practice in the area of TOLATA may also find this guide of use.

Orders that a non-party to litigation shall pay the costs of that litigation have become increasingly prevalent since the court’s power to make them was confirmed in 1986. Though judges have a wide discretion in this regard, the jurisprudence that has developed on this topic offers important guidance as to its exercise. It is important for practitioners to understand these principles so that they can be alert to the possibility of recovering their costs from a non-party and when their clients might themselves be susceptible.

Charles Shwenn is a member of the civil team in chambers and maintains a broad commercial chancery practice. He has a particular interest in the law of costs and civil procedure, on which he regularly writes and advises.

This book can be purchased from Amazon using the following link. Practical Guide to Non-Party Costs Orders

It’s business – but not as usual.

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Since the situation became increasingly troubling our team have worked hard to be in a position to assist our professional and lay clients, the Courts, and the Ministry of Justice to keep the system running in these unprecedented circumstances.

All of our members are trained on using the main cloud-based video platforms considered by Macdonald J in his recent guidance (CVP, Sykpe for Business, Zoom and Microsoft Teams), and we have been conducting remote hearings from home since Friday 20 March 2020. Members are able to accept instructions and papers electronically. Our clerking team will be happy to help you with any advice about the best ways to send bulky documents.

Our clerking team are also fully set up to work remotely, and our phone lines and diary systems mean that you will continue to experience the same high standard you have come to expect from Magdalen Chambers.

The situation is still evolving on an almost daily basis, but Magdalen Chambers is at the forefront of the efforts to keep the justice system running. Our Heads of Chambers and Teams are in contact regularly with the Senior Judiciary to ensure that we are able to provide the best assistance possible, within the guidelines. To that end we can provide:

  • A fully set up, dedicated video suite which is sufficiently spacious for Counsel and client to be the recommended distance apart if it is necessary and safe for them to be in the same room providing the security and confidentiality required by the Court in sensitive Children Act proceedings;
  • Smaller conference rooms in which a representative can sit alone in order to participate remotely in proceedings without the need to sit in the same room as a client, minimising risk to each individual;
  • This also provides the facility for clients who require the assistance and support of an intermediary or interpreter, allowing them to be in the same building, accessing the same video platform, but not the same room;
  • A fully trained team to conduct Private FDRs, including retired District Judges Arnold and Waterworth and Retired Circuit Judge HHJ Tyzack QC, alongside our wealth of fee paid judges in Chambers (Deputy District Judges and Recorders) as well as our well-respected team of finance practitioners. The Courts have been clear that FR cases are likely to be significantly delayed whilst priority is given to Children Act cases: Our clients do not need to wait for the Court to catch up with the inevitable and significant delays which will follow this crisis;
  • Our Direct Access barristers and clerking team remain fully set up and able to offer advice to clients in all disciplines. If you are struggling with the particular difficulties of cohabiting under the current Public Health guidelines and fear that you are unable to seek advice about a difficult situation then please contact us. We have experience of working remotely and discretely to ensure that you can still access advice and support.
  • We can also ensure that urgent applications designed to provide safeguarding for yourself and vulnerable dependents are made properly and promptly.

To talk to us please call – 01392 285 200

To email us please use – clerks@magdalenchambers.co.uk

Our hours are 8.30-6 Monday to Thursday and until 5.30 on Fridays.

Christmas and New Year opening times 2020/2021

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Wednesday 23rd – 8.30am – 6.00pm

Thursday 24th – Closed

Friday 25th – Closed

Monday 28th – Closed

Tuesday 29th – 10.00am -4.00pm

Wednesday 30th – 10.00am – 4.00pm

Thursday 31st – 10.00am – 4.00pm

Friday 1st – Closed

Monday 4th – 8.30am – 6.00pm

For Emergency Out of Hours contact please call our main telephone number and you will be transferred to our Out of Hours cover.

Members of Chambers and staff send very best wishes for a safe and happy festive period.

We welcome Liberty Crawford as a tenant of chambers.

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Members and clerks of chambers are delighted to congratulate Liberty following the successful completion of her specialist family law pupillage and we welcome her as a tenant of chambers.

Christian Gape, Head of the Family Team:-

“Liberty has very quickly gained a reputation as a skilled advocate with a client focused manner.  Liberty has attracted particular praise in family finance and private law children work where her robust but level-headed approach has gained plaudits from clients and colleagues alike.  I am very pleased to welcome her to Magdalen Chambers where she will add strength and depth to our busy family team.”

Chambers continued success with rankings in Chambers and Partners 2021

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Chambers are thrilled to achieve success for another year having been recognised by Chambers and Partners 2021. Over three areas of law, Employment, Family and Planning, six members have also been individually ranked together with recognition for the clerking team.

“The clerks are friendly, very helpful and will liaise directly with the court and other clerks regarding hearings if there is a clash. They are easy to deal with.” “Grainne McGovern, senior family clerk, is an excellent clerk providing information regarding fees and availability of counsel in a quick and efficient manner.”

Employment

Nigel Moore (Band 3)

“He is technically excellent, very experienced and a high-quality advocate.”

Family/Matrimonial

Christopher Naish (Band 1)

“He is articulate and gently persuasive, grabbing the ear of the judges, and his witness handling is second to none.” “He quickly and easily establishes an excellent working relationship with clients.”

Rupert Chapman (Band 2)

“He is very easy to deal with, extremely thorough and always has a good rapport with clients.”

Carol Mashembo (Band 2)

“She is a firm favourite to instruct in financial remedy proceedings given her great client care, bedside manner, her thoughtful preparation and her availability to deal with queries in a timely manner.” “She always adopts a meticulously thorough approach in dealing with matters, which puts everyone involved at ease.”

Elizabeth Willsteed (Band 3)

“She brought balance and insight into the case and was perceptive and unflappable.” “She’s a class act. She knows family law inside out and she is excellent in her knowledge.”

Planning

Gavin Collett (Band 2)

“Gavin is great for regulatory and prosecution matters.” “He is very personable and knowledgeable.”

Many congratulations to all involved.

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Magdalen Chambers ranked as Leading Set by the Legal 500 2021

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Magdalen Chambers is delighted once again to be  recognised by the Legal 500 as a leading set on the Western Circuit in the Legal 500 UK Bar Guide 2021, with eight members of chambers individually ranked in their areas of expertise. Chambers is a recommended set on the Western Circuit in three categories – , Family and Children Law, Planning and Environment law and Property and Construction Disputes.

We are particularly proud that our family team has been promoted to Tier 2 in this year’s guide, reflecting as it does the continued growth and development of the team’s reputation and coverage.The authors of the guide wrote that:

“Magdalen Chambers has ‘an extremely strong family team‘ and offers ‘a wide range of barristers who without fail are top quality, therefore, they are usually my first phone call as they are helpful and friendly‘. Areas of expertise include private and public law children law, adoption, and financial remedy on divorce. At the senior end, Susan Campbell QC is an experienced silk, ‘popular with clients and has a gentle but persuasive manner; intellectually sharp‘. With a broad practice covering most areas, Christopher Naish is ‘calm, and approachable but has a rapier-sharp advocacy style which he can adapt to suit cases‘. Carol Mashembo is praised for having ‘attention to detail that is second to none‘ and for delivering ‘detailed and precise presentation in court‘, whether it be in relation to children matters or financial. Elizabeth Willsteed is a go-to for children law matters; for family financial dispute resolution matters and TOLATA cases, Rupert Chapman is ‘always meticulous in his preparation‘.”

Five members of the family team have been ranked as leading individuals:

  • Susan Campbell QC is ranked as a leading silk in Child Law (Public and Private): ‘She has an innate ability to put clients at ease in the most upsetting and trying situations. She goes the extra mile to ensure that clients feel that they have had their say but also that they understand the process.’;
  • Christopher Naish is ranked in Tier 1 for both Child Law and Financial Remedies: ‘In terms of numerous strengths, Mr Naish is technically excellent, has a quick mind and a very personable manner with clients. Such is his ability, I have complete confidence in whatever area of Family Law I instruct him in.’;
  • Joint head of chambers Rupert Chapman is ranked at Tier 2 for Financial Remedies: ’Rupert has a sharp analytical mind that suits him particularly well to complex and technical cases; in particular cases involving trusts and business assets. He is friendly and approachable and easy to work with as an instructing solicitor. Clients like him.’;
  • Carol Mashembo is rated as Tier 2 for both Child Law and Financial Remedies: ‘Good affinity with clients, gives clear and firm advice. Clients find her pleasant to work with. Excellent preparation and analysis of facts, issues and law. Detailed and precise presentation in court. Always prepared to go the extra yards to get the case right.’; and
  • Elizabeth Willsteed, ranked Tier 4 for Child Law: ‘a highly skilled and effective advocate in the courtroom producing concise written legal documents and excelling in submissions and cross examination. She is highly regarded amongst clients and solicitors alike.’

“Magdalen Chambers’ commercial, property, and Chancery team handles national cases as well as those on the Western Circuit. Russell James specialises in housing and homelessness work, acting often for clients with disabilities, as well as taking on landlord and tenant, as well as boundaries and easements work. Natasha Bellinger has particular expertise in social housing, specialising in possession claims, injunctions, and committals. She uses her practice in personal injury and environmental law to take on cross-discipline matters, such as occupier’s liability. Also of note, the set recently introduced a direct access platform.”

Three members of our civil team are individually recognised:

  • Natasha Bellinger is ranked at Tier 2 for Property and Construction: ‘Always very thoughtful and responsive. Pragmatic, thorough, and great with clients. Friendly and approachable and always willing to look into matters early on. Great on her feet.’
  • Gavin Collett is described as ‘highly experienced in planning, highways, and rights of way matters’; and
  • Russell James is rated as Tier 2 for Property and Construction: ‘Russell is our first choice for complex housing work.’;

Joint head of Chambers Rupert Chapman said ”While it is always encouraging to read positive reviews in the legal directories, this year’s edition of the Legal 500 reflects Magdalen Chambers’ continuing growth as one of the prominent sets in the South West for all forms of civil and family work. It is a testament to the hard work and adaptability of our barristers and clerks that chambers not only receives such positive feedback from our clients but that they show how we continue to go from strength to strength in even the most challenging of legal markets.”

Magdalen Chambers

Magdalen Chambers Welcomes Jonathan Ward

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Magdalen Chambers are pleased to announce that Jonathan Ward has joined chambers.

Jonathan, who was formerly a solicitor in a local firm, is a welcome addition to the Magdalen Chambers Civil Team practising predominantly in property, commercial and construction litigation. We are delighted that he has decided to join us and add to our specialist commercial and property and chancery teams.

 

Jonathan says:

“I am delighted to be joining Magdalen Chambers.  Having worked with them for some time as a solicitor, they are a natural choice following my transfer to the bar.  It is testament to the quality of their legal services that even during these challenging times, Chambers is in a position to expand and invite me to join.”

Gas Safety and Section 21 Notices – “With you everything’s gas”*

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The Court of Appeal has (on 18 June 2020) handed down judgment in the appeal of Trecarrel House v Rouncefield [2020] EWCA Civ 760 ruling on the consequences for the validity of a section 21 notice in landlord and tenant proceedings of late compliance with the Gas Safety (Installation and Use) Regulations 1998. The effect of this decision is to overrule both the County Court decision in this case and in Carridon Property Limited v Shooltz(2018), which had held that failure to serve a gas safety record before a new tenant of an assured shorthold tenancy went into occupation was an irremediable breach meaning that no valid notice pursuant to section 21 of the Housing Act 1988 (‘section 21 notice’) could be served.

Before turning to the decision of the Court of Appeal it is helpful to remind oneself of the legislative provisions relating to gas safety records and section 21 notices that the court was required to interpret. The important points are these:

(1) By amendments made by the Deregulation Act 2015 a new section 21A of the Housing Act 1988 was inserted. This provided that a section 21 notice may not be given at a time when the landlord is in breach of a prescribed requirement.

(2) Regulation 2 of the Assured Shorthand Tenancy Notices and Prescribed Requirements (England) Regulations 2015 made paragraphs 36(6) and 36(7) of the Gas Safety (Installation and Use) Regulations 1998 prescribed requirements for the purpose of section 21A of the Housing Act 1988.

(3) Regulation 36(6) of the Gas Safety (Installation and Use) Regulations 1998 requires a copy of the gas safety record made pursuant to regulation 36(3)(c) to be given to a tenant within 28 days of the check and for a copy of the last record to be given to any new tenant “before the tenant occupies those premises”.

(4) Regulation 36(7) of the Gas Safety (Installation and Use) Regulations 1998 provides that where there is no relevant gas appliance in any room of the tenant, but there is in the building, a copy of the record can be displayed in a prominent position in the premises instead of giving it to the tenant.

The issues that the Court of Appeal had to consider in Trecarrel House Ltd v Rouncefield [2020] EWCA Civ 760 were three:

(1) It was common ground that a copy of the gas safety record had not been given to the tenant prior to her taking up occupation of the property, although there was one and this had been provided prior to the service of the section 21 notice. The question for the court was therefore whether this breach of regulation 36(6)(b) could be remedied by late compliance.

(2) A subsequent gas safety check had been carried out longer than 12 months after the previous one and since regulation 36(3)(a) required a check to be carried out “at intervals of not more than 12 months since it was last checked”, the question for the court was whether this was fatal.

(3) It was contended by the tenant that she had not been given the most recent gas safety record prior to service of the section 21 notice.

By a majority of 2:1 the Court of Appeal decided these issues as follows:

(1) The obligation in regulation 36(6) of the Gas Safety (Installation and Use) Regulations 1998 to provide a gas safety record to a new tenant before that tenant goes into occupation can be complied with late. As long as it is served before or at the same time as the section 21 notice, the section 21 notice will be valid.

(2) Failure to carry out a subsequent gas safety check and provide the record within 12 months is not fatal either. Patten LJ said: “I am not persuaded that a failure to carry out the next safety check within 12 months of the last one means that a landlord cannot comply with paragraph 6(a) as a prescribed requirement if he serves the tenant with a copy of the record once the check has been carried out.”

(3) On the factual issue of whether or not the tenant had been given a copy of the most recent gas safety record, raised in a Respondents Notice, the case needed to be remitted to the County Court for a determination of this point to be made.

In conclusion, the overriding message of this decision is that late compliance will be good for the purpose of a section 21 notice provided there is compliance at the time of or prior to the service of the section 21 notice.

 

*(Timon to Pumbaa in the Lion King).