In Brief – June 2015
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When is a vexatious litigant a good thing?
The issues April 2013 saw the enactment of the Legal Aid, Sentencing and Punishment of […]
The issues
April 2013 saw the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). LASPO brought about large scale cuts to legal aid, causing huge, immediate and still-growing numbers of individuals to represent themselves in court where, previously, legally aided representation would have been available. To compound the issue, court fees on certain money claims have recently increased (in some cases up to six-fold). The concurrent squeeze on legal aid and increase in court fees means that, more than ever before, many individuals are representing themselves in court.
The challenges
From the point of view of banks and businesses which deal with individual consumers and which now more frequently find themselves embroiled in disputes with litigants in person, some of the key challenges include [1]:
- The majority of litigants in person have difficulties understanding and dealing with court procedures and legal issues in their case.
- Around half of litigants in person are personally vulnerable in some way, which makes negotiation of the legal and procedural requirements of self-representation more difficult.
Problems created by litigants in person can include a refusal to engage with proceedings and, on occasion, aggressive and disruptive behaviour. (Litigants in person do not have the one-step ‘remove’ from a personally emotive case that a legal professional can provide).
Some hearings are taking significantly longer, because lawyers and judges are taking time to explain rules and processes to litigants in person. - Those hearings that are taking less time are not being resolved quickly due to a lack of lawyers indulging in spoiling tactics and debating technicalities – rather these hearings (many of which are crucial case management conferences) are collapsing as litigants in person are overawed and unable to cope.
- Litigants in person sometimes seek to rely on ‘bad’ research – increasingly using the internet and misunderstanding the law or trying to import US or other legal concepts into UK civil litigation.
- Litigants in person can be unfamiliar with the concept of openness in disclosure and with the lawyer’s overriding duty to the court. This can lead to mistrust and litigation being unnecessarily combative and cumbersome.
- Represented parties can feel disadvantaged and, to some extent, even unheard, when litigants in person are allowed to speak out of turn and interject in court proceedings, whereas their legal representative follows due process.
Top Tips
In the majority of cases, positive engagement is the best means of ensuring that justice can be achieved for all parties as quickly and as cost-effectively as possible. To that end, here are our top tips for dealing with lay litigants:
- Remember that barristers and solicitors are under duties to help in the administration of justice overall.
- Be aware that it will assist both parties if, from the outset, solicitors acting for the represented party engage with the litigant in person to explain relevant law and procedure in clear, plain English and in a wholly neutral manner.
- Assist the court as much as possible. Bring extra copies of documents. Explain both parties’ legal case and bear in mind that legal authority and guidance may need to be provided, by the legal representatives, for both cases…
- …but at the same time guard against the represented party having to pay additional costs of burdens falling on the legal representative when they should fall to the unrepresented side.
- Adopt a non-adversarial approach. It may be that being open-minded and inquisitorial instead may flush-out, for the benefit of all concerned, the real issues in a case.
– A litigant in person may, underneath any inflated rhetoric, have some genuine and valid issues, which can be resolved before costs increase and parties’ positions become entrenched.
– An upfront inquisitorial approach may discover that an apology or other form of resolution may appease a litigant, as opposed to a financial payment or other relief available from the court.
– Of course, a litigant in person’s case may have no legal merit at all, in which case an inquisitorial approach might mean that the legal representatives would be forearmed to give the best chance of obtaining a strike out or other suitable conclusion.
- Clients should trust their legal representatives’ judgment. Just because a fact or issue is not spoken out in court, or because a litigant in person’s interjection is not challenged, does not mean that the matter is not properly addressed by the lawyers in the proper and most persuasive manner elsewhere within the proceedings.
- Call or e-mail the litigant in person a few days before any hearing to ensure that they understand and are complying with all practical arrangements and procedural requirements. This can avoided wasted time and costs for the client.
- Inform barristers in advance if the case involves litigants in person and plan to attend court early as any pre-trial negotiations will take longer than with represented parties.
- Avoid last minute correspondence and production of documents and do not assume that the lay person will have the same instant access to e-mail and other communications as would a professional.
- Over-, rather than under-, estimate timings for hearings.
- Finally, if you do face a vexatious litigant, consider this recent case…
A contrary case
In KL Communications Ltd v Wenfei Fu [1] an employer had issued a claim that one of its employees had dealt with its database improperly. The employee replied to a communication from the employer, informing it that correspondence should be sent to a particular address. The employer then used the given address for the service of proceedings. The employee failed to defend and so default judgment was obtained. The employee failed to set aside or appeal the judgment. When it came to execution of a costs order made against the employee, however, the employee argued that her defence had never been heard. The employee, a litigant in person, was given a chance. She was directed to serve evidence and a draft defence by a certain date, to show why she had a real prospect of defending. The employee did not comply. Rather, she went on to make multiple separate applications for various orders, such as that the employer should make certain disclosures; that the employer’s claim should be found to be libellous; that the employer’s claim should be found to be groundless; and so on. The employer applied for a civil restraint order and submitted that the employee had demonstrated a complete failure to engage properly with the litigation process. The court agreed and made some helpful observations:
- In considering an application for a civil restraint order, the court must be satisfied that a party had persistently issued claims or made applications that were totally without merit.
- A persistent course of conduct in this context means more than two such actions.
If it was otherwise appropriate for a civil restraint order to be made, the fact that the subject was a litigant in person who did not understand the process or had got things wrong was entirely supportive of the making of such order, rather than it being something which the litigant in person could rely on to avoid it. - The fact that the subject of a civil restraint order application was a litigant in person did not justify a long history of non-compliance or further indulgence from the court.
- Making a civil restraint order does not prejudice a subject’s rights. Rather, it forces a subject to make applications properly or not at all.
____________________
[1] Sources include experiences of Walker Morris’ solicitors; extracts from Lord Dyson’s comments to the House of Commons justice committee in December 2014 and key findings from ‘Litigants in person in private family law cases’; Ministry of Justice Analytical Series 2014, para 2.1.
[2] KL Communications Ltd v Wenfei Fu IPEC 22/04/2015 Warren, J.

Promotions at Walker Morris reinforce investment in high[...]
Walker Morris has announced the promotion of four directors and seven associates across the firm.
Walker Morris has announced the promotion of four directors and seven associates across the firm. The appointments underline the Firm’s commitment to investing in high quality, specialist lawyers and reinforce its senior level employees.
The director promotions comprise:
Victoria Patterson specialises in restructuring and insolvency work and was recently heavily involved in advising a bank on its lending to a property development company in a finically distressed situation.
Seven associates were also promoted including:
- Alan Harper – Intellectual Property
- Thomas Mieszkowski – Corporate
- Suzanne Treen – Employment
- Katie Reed – Finance Litigation
Managing Partner Ian Gilbert commented:
“We recognise that our future success depends on our ability to attract, retain and develop high quality, enthusiastic people. These promotions recognise the positive contribution that these individuals have made both to Walker Morris and our clients and I would like to congratulate them all on their success. It is a testament to the commitment of the talented employees we have across the firm who are focussed on providing an excellent legal service to our clients.”

Employers breathe a collective sigh of relief as[...]
The Court of Justice of the European Union (CJEU) rules on ‘one establishment’ In a […]
The Court of Justice of the European Union (CJEU) rules on ‘one establishment’
In a judgment ending all speculation on the point, the CJEU has ruled that the words, ‘one establishment’ in section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A) refer to the separate workplace to which the individual is assigned rather than the entire business. In doing so, the CJEU has effectively followed the Advocate General’s opinion issued earlier this year and provided employers with welcome clarification on how to determine when the threshold for collective redundancy consultation is met.
The effect of the CJEU decision is to return the rules on collective redundancy to the ‘status quo’ that existed before the controversial decision of the Employment Appeal Tribunal (EAT) in 2013 that saw many employers having to aggregate proposed redundancy numbers across their entire business rather than at the affected site only.
A quick reminder of the issues
- In 2013, the EAT held that the words ‘at one establishment’ should be deleted from s.188(1) of TULR(C)A in order to bring it into line with the EU Collective Consultation Directive.
- This had a massive and onerous impact on many UK employers, especially those operating from a number of sites. The decision meant that employers had to aggregate proposed redundancies across all their UK sites for the purposes of determining whether the ‘collective redundancy’ threshold of 20 (or 100) proposed redundancies would be met in any rolling 90-day period. Failure to do this carried the risk of being in breach of TULR(C)A and exposure to claims for substantial amounts of compensation.
- The EAT’s decision was appealed to the Court of Appeal which referred the point regarding the interpretation and implementation of the Directive to the CJEU.
- The Advocate General gave his opinion in February 2015 as a precursor to the CJEU hearing the case. In doing so he addressed the concern that, if the ‘one establishment’ wording remained in place, many workers dismissed over the course of an overall redundancy exercise would not be entitled to the protection that the collective redundancy rules provide. He stated that whilst this was so, it was not contrary to the Directive because the aim of the Directive was not to provide full protection for all employees but to provide a minimum level of protection in a collective redundancy situation.
- On 30 April 2015, the CJEU handed down its decision. It held that the words, ‘one establishment’ refer to the entity to which the individual is assigned to perform their duties and does not encompass the employer’s entire operation. In other words, there is no need to calculate redundancy headcount across the whole business but only at the affected site.
- The case has been referred back to the Court of Appeal by the CJEU which, in view of the CJEU’s determination, should reverse the EAT’s decision.
How does this affect employers?
Employers who have continued during this period of uncertainty to adopt the ‘pre-Woolworths’ approach to collective consultation (as many did) are now able to do so in the knowledge that exposure to claims is far reduced. Any financial provision for risk of claims can be re-assessed and probably reduced.
- Those employers who have been under pressure from Unions or employee bodies to change their collective redundancy processes in light of the EAT decision will be able to rely on the CJEU ruling to draw a line under any ongoing discussions.
- Employers who followed the EAT’s decision and, consequently, aggregated redundancy numbers across sites can adopt the ‘pre-Woolworths’ approach in relation to future exercises. This will be welcome news to many HR teams who had been struggling with the sheer and unwieldy logistics of co-ordinating and calculating redundancy numbers across an entire UK business.
- Employers who are part way through a collective redundancy exercise and have calculated the threshold for collective consultation based on the EAT decision should consider how best to proceed in view of the CJEU’s ruling. Employers should be wary of simply ‘reversing’ out of ongoing collective redundancy procedures without first taking advice on the potential risks involved. A risk/benefit analysis will be required that takes into account not only the legal risks but also considers the industrial relations/PR issues.
- As was the case before the EAT’s decision, it is still important to assess whether ‘one establishment’ incorporates a single site or a number of sites which are local to each other or which have related functions. If, for example, a retailer has a number of units in a shopping centre then it is possible that, by virtue of their proximity or other connecting factors, the units could be classed as one establishment for the purposes of TULR(C)A. If in doubt, employers should always seek advice on this point.
Walker Morris’s experienced employment team are able to assist with any issues arising from this case. Please contact Andrew Rayment for further advice.

Changes to insolvency rules
The principal insolvency-related changes introduced by the Small Business, Enterprise and Employment Act 2015 (the […]
The principal insolvency-related changes introduced by the Small Business, Enterprise and Employment Act 2015 (the Act) are:
- liquidators and administrators will be permitted to assign the rights of action in respect of fraudulent trading, wrongful trading, transactions at an undervalue, preferences and extortionate credit transactions. Until now, it has only been possible for office holders to assign causes of action that vested in the company, not personal actions vesting in themselves
- administrators as well as liquidators will be able to bring a claim against directors for fraudulent and wrongful trading
Both of the above require secondary legislation before they come into force and we don’t yet know when that will be. The following, however, will come into effect on 26 May:
- the removal of the requirement for sanction before exercising certain powers in relation to liquidations
- administrators will be able to extend their term in office for up to a year (previously it was six months) by consent, without the need for a court application
- creditors who are owned a “small debt” will no longer have to prove in a corporate insolvency process or bankruptcy in order to participate in a distribution
- a challenge to the approval of ain IVA (on the basis of unfair prejudice or material irregularity) must now be brought within 28 days
- it will no longer be necessary for administrators to obtain the court’s permission before making a payment of the prescribed part only to unsecured creditors
- the abolition of fast-track voluntary arrangements
a requirement for progress reports where a change of liquidator occurs in the first year.
Provisions of the Act that do not yet have a scheduled date for coming into force are:
- the abolition of creditors’ meetings as the primary means of decision-making involving creditors
- the ability of creditors to opt out of receiving certain notices, including the results of decision-making processes, progress reports and receipts and payments accounts
appointment of the Official Receiver as the first trustee in bankruptcy - additional powers for the Secretary of State to make regulations in respect of sales to connected parties.
The Act is not solely concerned with insolvency law. In particular, it makes a number of changes to UK company, which we have reviewed previously.

Competition law priorities
Background The Competition and Markets Authority (the CMA) is required, each year, to consult on, […]
Background
The Competition and Markets Authority (the CMA) is required, each year, to consult on, publish and lay before Parliament an annual plan setting out its main objectives, priorities and resource allocation.
The CMA published its Annual Plan of activities and priorities for 2015 to 2016 in March. It has identified the following six areas as its strategic focus for the coming year:
- conduct that leads to consumer exploitation;
- online and digital economy;
- technology and emerging sectors;
- regulated sectors and infrastructure markets;
- public service markets; and
- sectors that are important to economic growth and recovery, such as the retail and construction sectors and the creative industries.
Building on the work done in its first year, the CMA expects in 2015/2016 to improve further the performance of the competition and markets regime delivering benefits for consumers, businesses and the wider economy. It remains committed to its target of generating £10 of direct benefits to the consumer for every £1 it spends and to continue to put consumers at the heart of its work.
Enforcement
Cartel enforcement will remain a priority for the CMA. The CMA expects to conduct more investigations more quickly using is new powers and enhanced resources. It has already used its new compulsory interview powers and with new senior investigators, digital forensics and intelligence capabilities, it says it will open during this financial year as many criminal investigations as possible with at least one leading to prosecution. The CMA’s first criminal cartel case will come to trial on 1 June 2016 and is expected to last six to eight weeks.
The CMA says that it also intends to launch at least four new civil investigations under the Competition Act 1998 in the coming 12 months, and at least three consumer cases or projects.
Markets
The CMA’s two major market investigations into energy and retail banking remain a priority, given these sectors’ importance to the UK economy. In addition, the CMA will look to launch two to four new calls for information, market studies or market investigations in the course of this year.
Mergers
The CMA will conduct an internal review of the use of the Merger Notice and interim orders in Phase 1 merger control investigations. It aims to start the statutory clock for Phase 1 merger review within, on average across all cases, 20 working days of a submission of a substantially complete draft Merger Notice (i.e. to speed up the pre-notification process). The CMA seeks to clear at least 60 per cent of mergers cases that are less complex (and therefore do not require an Issues Meeting and Case Review Meeting) within 35 working days. The CMA will also launch a review of the “exceptions to the duty to refer” guidance on merger control and Phase 1 remedies.
Partnership and Advocacy
The CMA is committed to working closely with the concurrent regulators (i.e. OFCOM, OFWAT, ORR, OFGEM, NIAUR, Monitor, the Civil Aviation Authority, the Financial Conduct Authority and the Payment Systems Regulator), encouraging them to use their competition powers (or risk losing them) and to complete Competition Act investigations within three years. Furthermore, the CMA will conduct two economic research projects and will publish a paper on vertical agreements in the online world.
Developing the CMA
In addition to the material increase in resources mentioned above, internally, the CMA is committed to embedding a common approach to managing projects across its portfolio.
What do the CMA’s plans mean?
The CMA’s plans for 2015/2016 highlight the strategic areas that it intends to focus on. The list is broad. Most of what is on the list will occasion no surprise. Companies in the sectors indentified above should ensure that they have comprehensive competition law compliance programmes in place in order to minimise the risks that may come from an investigation or market study in their sector.
The CMA has recently completed an investigation that an association of estate and letting agents, and three of its members, were infringing competition law. As well as the total fine imposed (of £735,000) the parent undertaking of companies involved, has undertaken to introduce competition law compliance programmes which include a commitment by senior management to, and accountability for, competition compliance. The fine was mitigated to reflect this. This is a clear indication that not only will the existence of an effective competition law programme help to reduce the risk of infringement in the first place, but it will be a factor taken into consideration if the worst does happen and employees, perhaps, within subsidiary businesses, are found to have acted in breach of competition law.
Walker Morris can help you establish and maintain an effective competition law compliance programme. Please contact us if you would like to find out more about how we can help you.

Not in my back yard! Changes to judicial review and their impact on the development sector
The Criminal Justice and Courts Act 2015 (the Act) came into force on 13 April. […]
The Criminal Justice and Courts Act 2015 (the Act) came into force on 13 April. The reforms are part of an attempt to tackle what the government regards as a ‘problem’ of high numbers of expensive and spurious judicial review (JR) claims. The changes aim to ensure that only cases where a different outcome is likely progress through the judicial review process and there is a fairer sharing of costs. But will intention meet reality? What is the likely impact for development and house-building? Walker Morris’ Planning & Environment team consider the recent legislative developments.
Key reform 1: Substantially different outcome
Only those with “sufficient interest” can utilise JR to challenge the lawfulness of a decision or action of a public body/entity exercising a public function, provided permission is obtained from the court before the case is heard in full. As part of the reforms, a revised rule means judges must decline a JR application in certain instances. When considering JR applications, the court must now refuse to grant relief if it appears to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
The courts could previously only ‘quash’ a JR claim, and so effectively refuse to review a previous planning decision, if it was deemed the decision would have “inevitably been the same” – that is, the same decision would have been made regardless of any supposedly unlawful elements in the decision-making process. However, judicial discretion on this point has now been removed. So when considering whether or not to grant permission for a JR application to proceed, the judge may consider whether the outcome would have been “substantially different” for the claimant. The judge must then “refuse to grant leave” on an application if, having undertaken this consideration, he/she finds it “highly likely” the outcome would have been “substantially different…if the conduct complained of had not occurred”. The one exception is if the case is of “exceptional public interest”. There is no statutory definition of what may satisfy this “public interest” requirement. With no guidance yet provided, the term is open to wide interpretation.
Comment
This altered approach seems to bring a lowered threshold, giving the courts greater instances in which they can refuse to proceed with a JR application. Judges have always had the discretion to refuse leave, but the mandatory nature of the new requirement may give judges greater confidence to dispose of cases earlier. In addition, defendants could utilise this as an extra argument at the leave stage and emphasise that challenges on minor, detailed points should not progress. In planning cases, this is likely to herald a move away from an overly technical approach – where applicants exploit opportunities to ‘nit-pick’ small details, which do not essentially form a successful challenge, but delay the progress of development.
Key reform 2: Costs for interveners
In addition to the above, judges are now more readily able to rule that third parties given permission to join in JR proceedings (i.e. interveners) should pay their own legal costs. Only in exceptional circumstances will their costs have to be met by a principal party. In fact, if certain conditions are satisfied, an intervener may be required under court order to meet the costs incurred by the other parties as a result of its intervention. These conditions include where:
- the intervener’s evidence and representations have not been of significant assistance to the court;
- the intervener has, in reality, acted as the main claimant or defendant; or
- the intervener has acted unreasonably.
Comment
Individual judges previously exercised discretion in deciding whether to enforce such a requirement. They tended to do so only in rare cases. Commentators suggest this will mean fewer charities, NGOs and campaigning groups will become involved in JR proceedings due to an inability to recover their costs.
Key reform 3: Costs orders and funding
A Protective Costs Order (PCO) acts to limit the amount of costs a claimant must pay if the claim is unsuccessful. A PCO could previously be made before permission to apply for JR has been granted. However, the Act now provides that the court can only issue a PCO once permission has been given for a JR claim to proceed. In addition, a statutory test must be satisfied before any PCO can be made – so a costs capping order should only be granted where:
- the claim is a “public interest” claim (as defined in the Act); and
- unless the PCO was granted, the claimant would have to withdraw and it would be reasonable for the claimant to do so.
The main instance where the new costs orders’ rules are to be disapplied is in relation to environmental claims. This is to ensure compliance with the Aarhus Convention, requiring public bodies to ensure public access to justice relating to environmental decisions. However, non-environmental planning cases will be subject to the full financial implications of the Act’s PCO restrictions.
Going forward, the High Court will also not grant leave to bring a JR action unless the applicant has provided the court with certain information about how the application is to be financed. This is likely to include details about the source, nature and extent of the applicant’s financial resources to meet any liabilities arising.
Comment
The level of detail and evidentiary requirements the courts are likely to demand in connection with this latter provision is unclear. However, the modifications relating to costs do bring a risk that individuals and action groups without funding will be prevented from pursuing JR due to inadequate resources. Some will regard this as hindering access to justice. However others will deem the legislative amendments as levelling the playing-field somewhat between claimant and defendant, particularly in development litigation.
Commencement and outcome
The changes introduced apply as follows:
- Key reform 1 (“substantially different”) – to all High Court claims issued on or after 13 April 2015;
- Key reform 2 (interveners) – to all High Court and Court of Appeal claims issued from 13 April 2015; and
- other reforms – commencement date awaited.
The coalition government frequently cited legal challenges in the planning sphere as hampering the country’s economic growth. Reflecting this perception, in 2012 David Cameron announced the government would “charge more for [judicial] reviews so people think twice about time-wasting”. Only time will tell if the implementation of the Act will indeed result in fewer JR claims being brought and deter applications made simply as a delaying tactic, with limited prospects of long-term success. Some areas of ambiguity remain in the new provisions, which will have to be ‘ironed out’. In any event, all parties involved must still give serious thought to their participation in a JR claim, particularly where costs and funding are a consideration.

Removal of caps on fines for Companies Act offences
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations […]
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015 came into force on 12 March this year. The Regulations give effect to section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2015, removing the cap on the maximum fines levied for summary offences under the Companies Act 2006 (2006 Act), previously set at £5,000 [or more] in the magistrates’ courts. Magistrates can now impose whatever level of fine they consider appropriate for such offences.
In the past some company directors may have taken a fairly relaxed approach to ensuring that, for example, the annual return is filed on time, in the knowledge that the fine, should one be imposed, would not be substantial. Such an approach would not be wise in the future – fines for non-compliance could be large.
Corporate offences that will be subject to the new fining regime include breaches of the following sections of the 2006 Act:
section 167 – the duty to notify the Registrar of Companies of a person becoming or ceasing to be a director
section 438 – the failure by a public company to lay accounts and reports
section 451 – default in filing accounts and reports
section 858 – failure to deliver the annual return.
Some companies may need to revisit their approach to compliance with the 2006 Act filing requirements to ensure they do not end up with a substantial fine.

Shedding some light on rights to light
The Law Commission’s final report on rights to light was published at the end of […]
The Law Commission’s final report on rights to light was published at the end of last year. The report, which reviewed the issues that rights to light disputes cause developers and landowners alike, attempted to address the imbalances in the law and the lack of transparency that currently arises in rights to light cases. The Law Commission’s aim was to balance the competing interests of developers and landowners, and to discourage beneficiaries of rights to light from using delaying tactics and silence to coerce increased payments from developers in return for giving up their rights.
What is a right to light and how can it be acquired?
A right to light provides the beneficiary with the right to enjoy the natural light that passes over a third party’s land and enters their property through defined apertures in a building. Once acquired, the right entitles the beneficiary to receive sufficient natural light to allow the space behind the aperture to be used for its ordinary purpose. As a result of the particular nature of rights to light, there is no right of light in respect of land that has not been built upon nor is there a right to direct sunlight (as the right entitles the beneficiary only to sufficient light for natural illumination not to direct rays from the sun).
Rights to light can be acquired in substantially the same manner as other easements namely:
- by express grant or reservation;
- by statute;
- by implied grant; and
- by prescription (i.e. long user).
In practice, rights to light are generally established in accordance with rules set out in the Prescription Act 1832. These rules differ somewhat from those for other easements and require the right to be enjoyed without interruption for a period of at least 20 years, without written consent (albeit oral consent does not necessarily constitute a bar to establishing a right) and without the use having to be as of right.
Despite initial indications that the Law Commission was going to recommend the abolition of prescriptive acquisition of rights to light it has refrained from doing so. It has however made a number of proposals with a view to making the process of acquiring a right to light more straightforward. In summary, the Law Commission has recommended the replacement of the existing methods of prescriptive acquisition by one statutory method identical to all other easements and based on 20 years’ qualifying use.
Preventing or defeating a right to light
The acquisition of a right to light can be defeated, or an existing right suspended or extinguished in a number of ways including unity of ownership of the benefitted and burdened land, agreement of the parties, light obstruction notices and abandonment. Of these, the Law Commission has proposed amendments to the procedure for light obstruction notices, the law governing when an unused right is to be treated as abandoned and the introduction of powers for the Upper Tribunal (Lands Chamber) to discharge or modify obsolete rights to light.
The Rights of Light Act 1959 (ROLA 1959) provides a method for interrupting a right to light without the requirement for a physical obstruction. Under the procedure in ROLA 1959 a notice creates a notional obstruction which is registered as a local land charge. These notices are known as light obstruction notices. However, before an application can be made to register the local land charge the owner of the burdened land must obtain a certificate from the Upper Tribunal (Lands Chamber) whose role it is to determine what steps must be taken to inform other people with an interest in the building about the proposed registration and to issue the certificate if it believes that sufficient publicity has been given. The Law Commission believes that the current procedure for light obstruction notices is unwieldy, slow and expensive. In an attempt to make the process more efficient the Law Commission has recommended a new system of registration for landowners to prevent the acquisition of a prescriptive right to light over their land. This would permit a certificate of light interruption to be registered as a local land charge and would mean that ROLA 1959 would be repealed. Only a freeholder, tenant with more than seven years of their lease remaining or a mortgagee in possession would have the ability to register a certificate of light interruption.
A right to light can be brought to an end by abandonment; however, this is difficult to prove as it requires evidence that the owner of the benefitted land had the intention never to assert their right to light (or transfer it to someone else) at any time in the future. The cessation of use of the right is, of itself, not sufficient to prove abandonment. An intention to abandon the right must also be demonstrated. This requires the blocking up of the aperture through which the light enters in some way.
The Law Commission has previously suggested [1] that if an easement had not been used for 20 years then such non-use would be sufficient evidence of an intention to abandon the right. It has now proposed that this principle should also apply to rights to light but that the period would be only five years. The Law Commission believes that if a window has been blocked up or a building demolished it is difficult to argue that there is an intention that the right should continue once even a short period has passed, hence the much shorter period of non-use than for other easements.
At present it is not possible, save by agreement of the parties involved, for a right to light to be modified. The Upper Tribunal (Lands Chamber) only has jurisdiction to modify or discharge restrictive covenants in limited circumstances, generally involving situations where the covenant is obsolete or does not serve any useful purpose due to changed circumstances. In its earlier report [2] the Law Commission recommended that it would be possible to discharge or modify easements created after its proposed Easements Bill. Such modification or discharge would require an application to the Upper Tribunal (Lands Chamber) and the circumstances in which such orders would be granted would be limited. Having reconsidered this point as part of its work on rights to light, the Law Commission has now recommended that all easements, including rights to light, regardless of their date of creation should be open to modification or discharge.
Damages – an adequate remedy?
If a right to light is infringed, the owner is permitted to apply for an injunction against the person interfering with the right. The courts, however, have discretion to award damages in lieu of an injunction. Recent case law [3] highlighted the court’s considerations when deciding whether to grant an injunction or award damages and confirmed that an injunction could be granted despite a development having been completed and let even though the owner of the right to light had failed to take steps to prevent the development during its construction and the developer had attempted to negotiate with the owner.
The Law Commission has recommended two changes to the law concerning rights to light disputes (and potential disputes). First, a statutory notice procedure (a Notice of Proposed Obstruction) to allow landowners to ascertain, within a set period of time, whether their neighbours intend to seek an injunction to protect their rights, or lose the ability to call for that remedy. Secondly, a statutory test to clarify when the court may award damages rather than halting a development or requiring its demolition. This test takes into account the Supreme Court’s decision in Coventry and others v Lawrence and another (No 2) [4] in which Lord Neuberger suggested a more flexible approach be taken when considering whether damages should be awarded. It is proposed that the court should not grant an injunction to prevent the infringement of a right to light if to do so would be a disproportionate means of enforcing the breach, taking into account not only the claimant’s interest in the benefitted land, the loss of amenity arising from the infringement and whether the loss could be adequately compensated by an award of damages. The courts would also be required to consider the conduct of the claimant and whether they had delayed in seeking an injunction, the conduct of the defendant and the impact that an injunction would have on them and finally the public interest.
WM Comment
The changes proposed by the Law Commission constitute a welcome step towards clarifying this contentious area of law. The proposed statutory test as to whether to grant an injunction acknowledges that there may be other relevant considerations, for example the public benefit of a development, over and above the interest of the parties involved in the dispute. It is hoped that increased transparency and engagement between parties at an early stage could aid in reducing disputes or settling those that do arise at an early stage. Only time will tell however whether the proposals will be adopted.
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[1] Law Commission: Making Land Work: Easements, Covenants and Profits a Prendre (8 June 2011)
[2] ibid.
[3] HKRUK II (CHC) Ltd v Heaney [2010] EWHC 245 (Ch)
[4] 2014 UKSC 46

The social media trap: don’t blur the lines between work and play
We live in a revolutionary new world of mass engagement in social media. Many have […]
We live in a revolutionary new world of mass engagement in social media. Many have embraced sensibly the opportunities that such open communication can bring but there remain some users that ignore social and workplace etiquette online. Such ignorance, whether intentional or not, can cause problems for businesses.
Technology is developing rapidly and is blurring the line between personal and business communications. Despite the widespread introduction of social media policies, employees can often think nothing of posting online comments about their colleagues and work issues. Social media platforms encourage a more relaxed approach to communication, lulling people into conversations in which it is easy to let slip information about work – however inadvertently.
While there is a growing awareness among social media users of the effects of libelling or harassing others online, libel and damage to reputation aren’t the only business concerns arising from social media usage.
An employee’s inadvertent comments online can also reveal seemingly unimportant information which might later prove to be significant. For example, such comments might amount to evidence required to prove a claim and the author employee might well find themselves dragged into a full scale eDisclosure (1) operation. This could well involve solicitors having to work their way through the information on that employee’s personal electronic devices.
For employees involved in court proceedings, a request for ‘e-Disclosure’ can come as a shock especially if presented with a formal request to hand over their mobile, blackberry or laptop for review. Many employees – including directors and business owners – do not realise what relevance their personal communications could have to a work dispute. There are however, many ways that a personal tweet or text could amount to important evidence – just take a look at examples in the box at the end of this article.
And yes, it can be potentially uncomfortable for employees to hand over their private correspondence. Technological advances mean that software can be used to filter documents to reduce the number of personal documents that the solicitors have to review. However, it is true to say that solicitors do sometimes come across insalubrious documents that the creator would almost certainly prefer not to have shared.
So how can businesses protect themselves and their employees from the risks of ill advised social media posts?
Tips for businesses
- Update (or introduce) appropriate workplace policies such as a social media and communications policies.
- Implement those working policies by thorough regular training.
- Undertake regular reviews of the policies: technology is changing rapidly and new technologies bring different risks. Ensure someone in the business keeps themselves informed and has responsibility to help the business adapt its policies as appropriate.
Train staff regularly to ensure they understand that :
– social media should be used responsibly – even private posts can potentially affect their employers’ business
– it’s important to keep work and personal communications separate where possible;
– their social media posts might be disclosable in later court proceedings if they are relevant to work disputes. This might lead to solicitors requesting access to their electronic devices such as their laptop and smart phone;
– if a dispute does arise, the employer has a duty to preserve all the evidence. Deleting eDocuments is a bad idea – a computer expert will still be able to find evidence of the eDocument on the electronic device – and the employee will then have to explain why the original was deleted.
Tips for employees
- Breach of company policies can lead to warnings and potentially dismissal. Read and adhere to your work policies. If there’s something in the policy that no longer works or is inappropriate – speak up and help your employer to update the policy;
- Take care with what content you post during work time and where possible, avoid all comment on work issues – at the very least in so far online comments are concerned;
- All your communications if relevant to a work dispute, however made, could end up as evidence in court proceedings as part of the obligation to disclose documents.
A postscript on the process of Disclosure
When a party chooses to resolve a dispute in the courts, the litigation process will normally involve disclosing documents relevant to the dispute to the other party. A party’s duty to disclose such documents is onerous.
‘Documents’ for the purposes of Disclosure has a wide definition. It includes electronic documents (e-documents) such as texts, blogs, tweets, posts and all related metadata – whether or not they were intended to be personal. The amount of electronically stored information (ESI) potentially relevant to a dispute can be surprisingly high and can span both work and personal documents. With the huge growth in the use of electronic devices, it is increasingly likely that relevant e-documents will be found in litigants’ and their witnesses’ personal as well as work communications.
If you want to read more about the process of disclosure, click here for a summary.
If you would like a copy of our checklist for directors ‘Disclosure Duties and preserving documentary evidence at the start of a dispute’, please email Gwendoline Davies.
Why might personal e-documents be relevant to a work dispute? Some examples…
People with little experience of court disputes often do not understand why it is important to review all potentially relevant documents – including private documents and those on their private devices. Here are some examples of responses to solicitors’ requests for access to documents – and explanations as to why the documents might be relevant.

Time to prepare for the Consumer Rights Act
The Consumer Rights Act 2015 consolidates existing consumer rights and remedies in respect of the […]
The Consumer Rights Act 2015 consolidates existing consumer rights and remedies in respect of the supply of goods and services. However, it also makes a number of changes to the existing regime. Businesses should review their terms and conditions and business practices to make sure they will be compliant with the Act, when it comes into force in October.
Definitions
Key to the Act are the defined terms “consumer” and “trader”. A “consumer” is defined as “an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession”. This could include an individual entering into a contract for a mixture of personal and business reasons. A “trader” is defined as “a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf”. This could include government and other public sector bodies.
Remedies for defective performance of services
Consumers will have statutory remedies of “repeat performance” and a price reduction if the service does not conform to the contract, as follows:
- if a trader breaches its duty to provide the service with “reasonable skill and care”, or does not comply with information that they have provided to the consumer about the service, the consumer is entitled to repeat performance or a price reduction for the service
- if the service is not performed within a reasonable time, or the trader does not comply with the information that it has provided to the consumer which does not relate to the service, then the consumer is entitled to a price reduction for the services.
The above remedies are without prejudice to the consumer’s right to claim damages and specific performance of the contract.
The contractual status of voluntary statements
Spoken or written voluntary statements, made by the trader, about the trader or the service may constitute binding contractual terms under the Act. This can be the case where the statement is taken into account by the consumer when:
- deciding to enter into the contract
- making any decision about the service after entering into the contract.
Currently, the consumer’s remedy for a misleading statement that induced them to enter the contract would be to bring an action in misrepresentation. When the Act comes into force, they will be able to bring a breach of contract claim.
Supply of goods
Consumers will have an “early” right to reject defective goods, which will be limited to 30 days (shorter for perishable goods, where the period will be how long it is reasonable to have expected the goods to last, e.g. at least until their “use-by” date). This is a change from the current legal position where the period in which a consumer may reject is a “reasonable time”, which will vary according to the circumstances. Traders may extend the 30-day period; they cannot reduce it.
Traders will have one opportunity to repair or replace the defective goods. If repair or replacement is not possible, or the attempt at repair fails, or the first replacement also turns out to be defective, the consumer will have the right to a full or partial refund.
There will be a default delivery period of 30 days, though a longer period may be agreed. Goods will remain at the supplier’s risk until they are delivered to, and in the physical possession of, the consumer.
Digital content
For the first time, there will be bespoke consumer remedies for purchases of digital content. As with the supply of goods, digital content must be of satisfactory quality, fit for purpose and confirm with the description given by the trader.
The new rules will cover paid-for content and content provided free with paid-for goods or services or other digital content, including apps and in-app purchases. The rules apply to digital downloads and also digital content supplied on a physical medium, such as a DVD.
In contrast to physical goods, there is no right of rejection for digital content (save where the digital content comes with physical goods, e.g. on a disk, in which case the 30-day right to reject referred to earlier will apply or where the trader is in breach of a new implied term that the trader has the right to provide the digital content). Instead, there will be a right to repair or replacement or, if not possible, the right to a full or partial refund. Unlike with physical goods, the trader is not limited to just one go at repair or replacement.
The trader will have to compensate for damage to a device or other digital content owned by a consumer where that damage would not have occurred had reasonable care and skill been exercised in the provision of the digital content – even if that content has been provided free of charge. Damage caused by a virus would be an obvious example of what the legislation is getting at here.
Contract terms and consumer notices
The Act merges the two existing regimes governing terms in consumer contracts – the Unfair Contracts Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999. One effect of this is that consumer notices, including for instance, oral warnings and signs, will have to be fair. If they are not the seller will not be able to rely on them.
The most important change in this area relates to “relevant terms”; which are terms specifying the main subject matter of the contract or setting the price. These terms are not subject to the existing ‘fairness’ test provided that they are both:
- transparent: in plain and intelligible language and, if written, legible
- prominent: brought to the consumer’s attention in such a way that the average customer (who is well informed, observant and circumspect) would be aware of the term.
This goes further than the existing law, which includes a requirement for transparency but not prominence.
The Act provides that a term can be deemed to be unfair even if it has been individually negotiated with the consumer. In practice, this is rare in consumer contracts.
Additional terms have been added to the “grey list” – terms which may or may not be unfair depending on the circumstances. These are:
- allowing the trader to decide the characteristics of the subject matter after the consumer is bound
- allowing disproportionate charges or requiring the consumer to pay for services which have not been supplied when the consumer ends the contract
- allowing the trader discretion over the price after the consumer is bound.
Enforcement of competition law
The Act makes it easier for businesses and consumers to seek compensation via collective proceedings brought on behalf of groups of claimants, in particularly enabling opt-out collective actions for the first time. These will fall within the jurisdiction of the Competition Appeal Tribunal which will have power, among other things, to approve settlements of collective actions where it considers the terms of the proposed settlement are just and reasonable.