Employment Law : O’Cathail v Transport for London EAT
The Tribunal should not have refused the Claimant’s application for a second adjournment on the basis of ill-health. Where the Claimant’s presence is needed for a fair hearing, but he is blamelessly unable to attend, the tribunal should usually grant an adjournment. The tribunal is entitled to be satisfied that the inability to attend is genuine, and the onus is on the applicant to prove the necessity of the adjournment.
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February 3, 2012
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Professional Negligence Law: Chapper v Jackson (Ch) 21/12/11
An application against a trustee in bankruptcy that he pay ÂŁ200,000 to the estate as loss alleged to have been occasioned by the sale of a property at an undervalue failed. Following proceedings relating to the property the court ordered that it should sold for not less than ÂŁ650,000. That was the price at which the property was sold. This was said to be at an undervalue and the trustee should have applied to the court to increase the minimum sale price and also by failing to initiate rent reviews in respect of the property. The court held that the in general terms the prospects of an intervention were poor. There was no possibility of reversing most of the orders previously obtained including the charging order and the order for sale. Central to the decision not to join the litigation was the limited costs in the estate and of the administration and the potential liability for the other party’s costs. Without a new valuation there was no prospect of an application succeeding and the omission not to obtain s uch a valuation did not fall short of the trustee’s duty. For similar reasons it was not a breach of duty not to have pursued rent reviews.
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February 2, 2012
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Book recommendation: ‘Facts and Figures 2011/12′
Now in its 16th edition, this collection of tables enables you to effortlessly calculate special damages and claims for loss of earnings in personal injury cases. Facts & Figures 2011/12:
- Brings together all the information in one volume, to assist you in assessing special damages information quickly, easily and efficiently
- Provides access to the latest, up-to-date material and includes the 6th edition of the Ogden tables
- Ensures accuracy in the calculation of special damages and claims for loss of earnings
- Provides you with up-to-date financial and statistical information
- Helps with the production of schedules and counter-schedules
- Widely used across the profession and frequently cited in court
- Includes: Life, multiplier and discount tables, Earnings tables, Various interest tables, Price tables, Investment tables, Tax and insurance tables, Benefits, allowances and charges, Criminal Injuries Compensation Authority Multipliers Table, Decimal Years Table
- Provides clearer, easier to use Carer Rates tables, Nanny cost-to-client rates to be re-calculated in accordance with formula used for carer rates and a simplification of Tables C-1 Earnings Losses
Available from Amazon.co.uk
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February 1, 2012
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Cat Chaos Grounds Canadian Flight for Hours
What would happen if a cat escaped and decided to run around a huge commercial flight to Canada? It’s utter chaos. This is what the passengers of Air Canada Flight 603 from Halifax to Toronto experienced when a cat accidentally escaped its carrying case and decided to run all over the plane.
According to the reports, Ripples the cat ran free after a passenger unknowingly opened its carrier. The cat was frightened by the buzzing noise that the airplanes’ engine produced.
Some passengers say that the scene was pretty amusing, the flight was then grounded for 4 hours as they searched the whole aircraft for the scared cat. The staff decided to turn off the lights and the engine to calm Ripples down.
After hours of search Ripples was found. Â After checking the plane for damages to cables and wires that the cat might have caused, they found out no harm was done and took off.
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January 31, 2012
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Issues with the person next door!
Problems with one’s neighbours mainly arise as a result of difficulties in human relationships but will call for legal intervention when it becomes unsolvable between individuals concerned. Amazingly people do put up with inconveniences if they are friendly to one another. When relationships are strained even minute problems tend to get blown out of proportion! Unfortunately that is the order of the world and all we can do is to find a suitable way to mitigate the situation.
A variety of issues may crop up between neighbours but there are certain prominent and more common ones that I have highlighted below.
a) Trees: Trees can grow very tall and big obstructing the neighbour’s right to natural light. In some cases their roots can spread into the neighbour’s property affecting their plants and other vegetation. No matter how irksome, action can only be taken if the branches overhang the neighbouring land or roots encroach beneath it. It is possible to trim the overhanging branches without notifying the tree’s owner as long as one does not trespass into the neighbour’s property. Sometimes the roots could cause subsidence and structural damage to the adjacent property. Attempts must be made to talk the problems over with the neighbour. If the matter proves difficult then legal action can be sought under the Anti-Social Behaviour Act 2003 with a right to cut off the tree and claim damages from the neighbour.
b) Noise: An occasional excess of noise in neighbouring properties owing to building works or parties is reasonable and must be tolerated. There is also an onus on the perpetrating neighbour to inform people around in advance of these foreseeable events so that they are mentally prepared for the event. If the noise is excessive and begins to affect the health of neighbours or their enjoyment of the property and the neighbour refuses to comply recourse is available under the Noise and Statutory Nuisance Act 1993 that supersedes the Environmental Protection Act 1990. The Noise Act 1996 also provides solutions. The Environmental Health Officer of the relevant Local Authority is responsible for investigating the matter taking any necessary action.
c) Smoke and airborne pollution: This applies to any emanation that is excessive to the extent of interfering with the neighbour’s quality of life and health. Occasionally if the neighbour is unaware that the smoke is causing inconvenience to adjacent properties he may be prepared to come to a mutually beneficial solution. The Clean Air Act 1993 is available for any legal action to be taken against an unusually difficult neighbour. This kind of pollution is more common if a property is adjacent to a restaurant where smoke is released on a regular and continuous basis. The 1993 Act has specific legislation for the minimum height of chimneys on trade and industrial premises; operation of furnaces and problems caused by dark smoke.
d) Rubbish: People in residential areas sometimes may not adhere to organised ways of disposing of rubbish. On occasions it could be a rupture in relationship with the neighbour that may trigger this kind of behaviour. As with anything else this can be tolerated up to a certain extent and attempts made to settle matters in a cordial manner. If the trouble maker continues with the practice an Environmental Health officer must be contacted in the first instance. Where property is damaged as a consequence, legal advice must be taken and compensation claimed under the Noise and Statutory Nuisance Act 1993.
e) Car and vehicle parking: In addition to disputes pertaining to property, car parking may cause troubles. If part of one resident’s drive way is subject to a right of way for others to use then any parking should not obstruct this right of way. Planning permission is required to erect a car port or for building a garage on one’s land with the essential purpose of ensuring that it does not inconvenience the neighbours. Disputes could also be caused by someone parking their car obstructing a neighbour’s drive way. This matter can be resolved quickly and easily with the neighbour and action need be taken only as a last resort.
f) Contravention of planning permission: Occasionally a neighbour’s unused land could be used for purposes other than for what it was originally built causing nuisance to neighbours. Local authorities have to be made aware of this so that they can confirm if planning permission exists for the purpose. Otherwise they have the right to take action as appropriate.
g) Boundary Disputes: These are more complex as they arise in a majority of cases owing to poor and imprecise defining and recording of property boundaries. It is often the case that boundaries are a matter of contention between adjacent residential neighbours. Only as recently as the 1980s angle and distance measurements and computing technology made land surveying more accurate and cost effective. Dimensions have been in the most part inaccurate and do not contain sufficient information to unambiguously define boundaries. UK legal system lacks the system of precise and exact demarcation of boundaries between properties leaving residents to face an endless flurry of problems as to what extent their properties run. It would be inordinately expensive to revamp the existing system. However, for new properties Land Registry is persuading developers to perform as-built surveys for use as conveyance plans and abandon the age-old practice of re-using layout plans for conveyancing and reduce the probability of disputes.
h) Access to Neighbouring Land Act 1992: This Act provides for neighbours to enter adjacent properties for what would otherwise be a trespass for specific purposes: 1) Maintenance, repair or renovation of property for preservation 2) For repairs of sewers and drains 3) Removal or filling of a ditch and 4) For felling of a tree, plant or hedge that is diseased or has died or is in danger of falling owing to weak roots.Laws are always being formulated for reducing neighbour disputes and the costs associated with it but the onus is on every citizen to keep disputes to a minimum and resolve them quickly where they do arise owing to situations beyond one’s control.
Mangala Murali
Tel: 07890 936770
LinkedIn: www.linkedin.com/pub/mangala-murali/16/b38/22b
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January 30, 2012
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Monday morning with Alex Williams’ cartoons, 30th January 2012
This cartoon is by Alex Williams who draws the Queen’s Counsel cartoons for The Times and in numerous books including Lawyers Uncovered. He also does the cartoons for BabyBarista and has had two more excellent books published recently: 101 Ways to Leave the Law and 101 Uses for a Useless Banker. He offers almost all of his cartoons for sale at ÂŁ120 for originals and ÂŁ40 for copies and they can be obtained from this email info
qccartoon
com.
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January 30, 2012
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Weekend video: ”Jerusalem’ by Jez Butterworth’
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January 28, 2012
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IT Law: Astrazeneca UK v IBM [2011] EWHC 306 (TCC)
This case concerned the terms of a ‘Master Services Agreement’, which required the parties to provide various services after termination, until the end of an Exit Period. The parties applied to the court for declarations as to the construction of various terms within the contract, including the term ‘infrastructure’ and ‘associated systems’. The judgment, by Ramsey J, gave declarations in relation to 8 separate issues between the parties, on agreed facts. The decision includes a number of references to the factual matrix and the structure of the specific agreement, and is unlikely to be of much value as a precedent in other cases.
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January 27, 2012
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Financial Services Law: FSA v Mahmood, Agha, Anjum and Kumarans Silks Ltd 5/1/12
In separate actions, the FSA issued final notices cancelling registration of a number of businesses as small payment institutions following the failure by Mr Mahmood to comply with regulatory requirements.
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January 26, 2012
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Book recommendation: ‘A Certain Justice’ by P D James
Although A Certain Justice begins with news of a murder, the victim isn’t set to die for another four weeks. Publicly respected but privately loathed, Venetia Aldridge has far more enemies than a brilliant London criminal lawyer should–and at least one of them is determined to do her in. Venetia plies her superior trade in courts that harbour “the illusion that the passions of men were susceptible to order and control,” but her past and private life are exceedingly unruly. Her married lover is intent on giving her up; her daughter loathes her; her fellow barristers are determined that she not become the next head of chambers. Even the cleaning woman seems to have something on her. The outline alone of this complex novel would take pages (as would the eclectic inventory of players), but P. D. James makes us admire far more than her brilliantly developed plot. James in fact creates a crowded gallery of surprisingly decent suspects, along with one suitably vile creature–who happens to be Aldridge’s last client. A superior murder mystery, A Certain Justice is also a gripping anatomy of wild justice. James’s characters can be overcome by hate, but she is equally concerned with love’s manifestations–human, divine, destructive, and healing.
Available from Amazon.co.uk
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January 25, 2012
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