Law and the courts system has never had the appeal of the NHS or education in the public affections.

Stories of the underfunding of the courts system will, in most cases, be met with a shrug and the comment ‘so what?’.

The lawyers keep going on about how dreadful it all is, but then they would, wouldn’t they?

Why the courts are important for landlords

However landlords need the courts. As the RLA pointed out recently in their campaign to stop the court closures, if landlords have a bad tenant, their only real option is to go to the courts for a possession order. If the tenants are not paying rent, then delayed court claims mean bigger financial losses for the landlord.

It is rare indeed for a landlord to get his rent paid when a tenant is evicted for rent arrears. I have done many rent arrears evictions and I can probably count on the fingers of one (or possibly two) hands, the times when we have been able to recover all the money.

The only thing to do is to minimise your losses by getting the case to court as quickly as possible so a possession order can be made.

The effect of cuts in family law legal aid

So when I read an article in the Law Society Gazette  by a District Judge about the effect that the legal aid cuts in family law are going to have on the time it takes to hear the cases, my first thought was “this is not going to be good for landlords”.

The government, it seems, thinks that ordinary people are able to deal with their divorce and family settlements without the help of lawyers.

District Judge Peter Glover however, begs to differ. And as he, and his fellow co Judges are the ones at the coal face hearing the cases, I would suggest that he knows what he is talking about.

Here are some of his comments on why some litigants struggle:

• Many do not cope well with the written word
• Many are unable to organise their paperwork
• Poor numeracy skills are commonplace and many are financially illiterate
• They do not understand credit and debt ‘save to the effect that they have taken it and are in it’
• They often lack any psychological empathy with their opponent and are unable to see the other parties point of view
• They often have strong emotions about the case
• They have a fear of being involved in court proceedings (understandable, courts, for non lawyers, can be very scary places – indeed they are also scary for many lawyers)
• Most have no understanding or concept of the legal process, and
• Many have a subjective certainty in the justice of their own case

In the light of all this, says the Judge, “the opportunity for negotiated settlement is reduced”. An understatement if ever I heard one.

Later on in the article he paints a vivid picture of dealing with an FDR (financial dispute resolution) hearing

with two individuals who continually produce new documents from plastic bags, who will not listen to each other, and who are unable, emotionally, to compromise.

In this context, the Judge’s suggestion that

the virtual elimination of publicly funded professionals from family cases in the County Court threatens its collapse under the weight of misplaced expectations

makes perfect sense.  The Judge sums up his article as follows:

In recent years, the county court has tried – and, with the hard work and goodwill of its staff and judges – made a reasonable pretence of getting a quart into a pint pot. This time the overflow will be all too apparent.

So why am I banging on about family law cases in a landlord law blog? Because the pint pot includes the court’s housing jurisdiction.

Long delays mean more rent arrears

Many people have criticised the length of time it takes to get a possession claim to trial.

However given a choice between hearing a case where the future well being of children is at stake and a case which, if adjourned will ‘only’ result in a landlord loosing another months rent, I think you know which one the Courts are going to favour when listing.

All things are connected. As Donne rightly said “no man is an Island’. No more money is going to the Courts, that is clear. If Judges are having to spend more time dealing with family law cases which are taking twice as long as they should, because all the parties are litigants in person, what is going to happen to the housing cases?

You tell me.

You can read DJ Glover’s article in the Gazette >> here.

County Court picture by Ken Brown

Enforcement of judgements

The report admits what most of us working in the legal system have known for years:

“ineffective enforcement processes” are a particular weakness of the small claims system.

I.e. they are (on the whole) pretty useless.

A former review ended in 2003 and some reforms were included in the Tribunals Courts and Enforcement Act 2007 but most of the changes have yet to be implemented, so thats a fat lot of good.  The government is now consulting (again) but are looking at implementation of the provisions under the act, i.e.

• whether to allow applications for charging orders on all judgment debts regardless of whether or not the debtor is paying by, and up to date with, instalments
• introducing a new enforcement mechanism for information applications, requests and orders for information on debtors
• introducing a mechanism to trace a debtor’s current employer in attachment of earnings applications
• introducing a minimum threshold on applications for orders for sale in Consumer Credit Act debts (the Coalition Government Commitment
• introducing fixed tables to the attachment of earnings process, similar to those used for criminal fines and council tax recovery

They are also going to look at charging orders and third party debt orders.  Problems with the system at present include the following:

• That information provided by debtors in attachment of earnings applications are often unreliable (now there’s a surprise!), and
• That a weakness of the AE orders is that they lapse when the debtors lose their job
• Third party debt orders are often useless because the debtor has moved his money from that account
• Oral examinations are often a waste of time because the defendant either never turns up or lies like a trooper

There are a number of proposals set out, and if you are interested I suggest you go and have a look at the report.

However none compares with the simplicity of a suggestion made by Nick Holmes in Binary Law in a post in 2007, which was that there be an ATM machine in the court room and that the losing party be asked by the Judge to pay with his credit or debit card, there and then.

Why can’t they do that?  They could make it worth the debtors while by saying that this would remove all risk that he would be put on the register of judgements.

Structural reforms

The report points out that that the basic court structure has not changed for many years.  Things under consideration include:

• increasing the financial limits of the jurisdiction of the County Courts to £350,000
• increasing the financial limit  below which  claims cannot be started in the High Court to £100,000
• Giving the County Courts extra powers to grant ‘freezing orders’
• Taking away some types of claim from the County Court (mostly trust stuff)
• Allowing High Court Judges to sit in County Courts without having to get special permission first
• Simplifying the system so there is  just one County Court for England and Wales (albeit in lots of buildings)
• Doing more work to modernise the courts – this could include reducing the need for people to attend court personally and passing some work over to other organisations such as the Insolvency Service
• Integration with Tribunals

So there you go. Some of these proposals are quite radical and will bring in not a few changes.  But what do YOU think?  If you have strong views, you have until 30 June to present them to the government.  You can find a form here together with an online questionnaire.

But please also let us have any comments on the proposals here too.  Do you have any suggestions about improving the enforcement of Judgements?  Do you agree with the proposals to streamline the court system?

• The fee for issuing proceedings for possession will rise from £150 to £175, unless the online procedure is used, when it will remain at £100
• A standard application where no other fee is prescribed goes up from £75 to £80, and
• A warant of possession will go up from £95 to £110

Those are the main fees that affect my work.  So please note that I will be increasing my repossession fees to take account of this.

As you will probably know, one of the cost cutting exercises carried out by our government is the closure of many of the smaller courts around the country.  I reported on this here.

The effect of this will probably be to slow down an already creaking system.  I reported here on the other problems which I and others are experiencing with the courts.

Unlike most other types of business, landlords are very vulnerable to problems with the courts.  If a tenant is not paying rent, or if a landlord needs to evict a tenant for some other reason, this HAS to be done via the courts.

If a landlord evicts a tenant any other way, for example by changing the locks, this is unlawful eviction and a criminal offence. The tenant will also be able to claim compensation (sometimes substantial compensation) from the landlord.

So if the court closures have an effect on the time it takes, for example, to bring a claim for possession, this is going to affect landlords’ bottom line.

Whatever the government say about it, I don’t see how the closure of so many county courts around the country can have anything other a negative effect on landlords’ claims for possession.

What do you think?  Have you experienced any additional delays which you think are down to this?

Photo by Redvers

I thought a post on this would be a good idea as I have had a couple instances recently where the courts have been plain wrong in the information they have given.

Often non lawyers think that if someone from the court tells them something it must be right. Because it is the court.

However it is important to realise that the person who answers your phone call (if you are lucky enough to get your call answered at all) or who deals with your query is unlikely to have had much (or perhaps even any) legal training. Its not like its the Judge speaking to you. You should not take it as gospel.

Some examples of problems with the courts

• A client who was using one of my legal kits contacted me recently saying that the court had refused to accept his claim because he had not written the case number on it. Which is crazy because a case can’t HAVE a case number until it has been issued!

• Then I sent an email to the court recently just to confirm that the file in an accelerated possession claim had been passed to the Judge on receipt of a defence. This is supposed to be done automatically but I thought I should check. The clerk told me that I first needed to send in form N206A. But this form is just for use where there defendant HASN’T filed a defence. (The order came along shortly afterwards anyway so maybe the clerk just had not bothered to check the file records).

• Then there are countless final orders which I have sent back to the courts over the years because the clerk typing the order up has got it wrong. A common error in possession proceedings is to say that the order was made under a discretionary ground when in fact it was made under a mandatory ground. An important point and one which needs to be correctly stated on the order.

What problems have you had?

Photo by dweekly