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Dispute Resolution

Blurring the boundaries
Tuesday 22nd July 2014

A legal case involving a boundary dispute might bring to mind a series of academic arguments over the interpretation of dusty deeds and ambiguous plans.  However the vast majority of ‘boundary disputes’ that we see involve a whole host of other issues, with the issue of the boundary often being relegated to secondary importance.

When we are first approached by prospective clients in relation to boundary disputes, it is often not until the meeting after the initial telephone call that it becomes clear that parties are not locked in an academic argument over the position of the boundary on a map, but into a whole range of disputes (of which the position of the boundary might be one) that is better described as a ‘neighbour dispute’.

The issues involved are often complex, for example interpretation of rights of way, interpretation of other rights that the owners of one property may have over another property but a major factor in such disputes is the ‘clash of personalities’.

There will of course be instances where serious harassment by one neighbour of another goes way beyond a clash of personalities.  However, in the main, we find that the actions of one neighbour are often misinterpreted by the other (and vice versa) due to a history of prior disputes and resentments, to the point where even putting the bins out at the wrong time can be considered the latest act of intimidation.

Whilst many disputes are often at a stage where neighbours will no longer even be on ‘nodding’ terms by the time the matter reaches solicitors, our experience is that early reasonable action can avoid a long and costly legal battle between entrenched parties (one recent neighbour dispute reported in the media resulted in the losing party being liable for damages of £200,000.00, their own legal costs of £200,000.00 and their neighbour’s legal costs of £200,000.00 as well).

As difficult as it may be to speak to your neighbour once relations become strained, the alternative of spending hundreds of thousands of pounds certainly provides an incentive.  Once the letters and emails start to fly, the long slippery slope to the solicitors’ door begins, so our advice is to keep talking to your neighbour for as long as possible, even in the face of downright unreasonableness.

There may come a point where a visit to the solicitor is inevitable, but in our experience many disputes between neighbours could have been resolved by a cup of tea and a chat – give it a go.


Landmark airline compensation ruling could mean refunds for delays and cancellations over last six years
Tuesday 1st July 2014

The world’s eyes are on Brazil this month as it hosts the 2014 World Cup. The run up to the event has not been an easy ride for Brazil who has had some high profile teething problems including travel chaos due to airport strikes, flight delays and even cancellations.

The majority of the travel chaos has come in the same week as the landmark ruling from the Court of Appeal in the V Mr. Huzar case. The Court of Appeal ruling has paved the way for airline passengers to claim compensation for flight delays caused by mechanical failure.

The High Court ruled that Jet2 should pay compensation to passenger Mr. Huzar for a 27-hour delay on a flight from Manchester to Malaga back in October 2011. The airline said the wiring defect on the aircraft which caused the delay was an “extraordinary circumstance”.

However, the court rejected that view and ruled that the defect was “inherent in the normal exercise of the activity of the air carrier”.

Jet2 is now going to take its case to the Supreme Court.

Prior to 2009, airlines did not have to pay out compensation for delays to flights, but they now are obliged for delays of more than three hours except in “extraordinary circumstances”. This applies to airlines flying out of the EU to a non-EU destination, such as Brazil and EU airlines flying into another EU destination.

“Extraordinary circumstances” do still include freak weather or natural events such as the Icelandic air clouds of 2010 and 2011.

With England gearing up for their second group match against Uruguay on Thursday, more fans are expected to fly to Brazil to join the 38,000 English fans already there. Whilst the case relates specifically to technical faults causing delays, any delay over three hours for any reason that does not amount to ‘extraordinary circumstances’ can result in compensation being due to the passenger. The Court of Appeal decision in the case serves as a timely reminder to all passengers who experience delays over three hours, including those football fans making their way to Brazil in the coming weeks.

Anyone who has experienced significant delays for technical faults or for any other reason over the last 6 years should consider taking advice as to whether they could be entitled to claim compensation from the airlines.


Court of Appeal overturns M&S rent refund case
Tuesday 24th June 2014

Good news for commercial landlords as the Court of Appeal recently overturned the decision of the High Court in Marks & Spencer v BNP Paribas in relation to a tenant’s ability to apportion rent when breaking a lease during a quarter.

Issues arose back in 2012, when M&S, the tenant, exercised its right to break various leases of office premises. Rent was payable under the respective leases quarterly in advance and the break dates, 24 January 2012, fell between quarters. For the breaks to be effective, M&S was required to pay all rents due under the leases in full for the quarter commencing 25 December 2011, together with an additional premium in each case comprising a year’s rent.

Following expiry of the leases upon 24 January 2012, M&S sought repayment of rent attributable to the period from 25 January 2012 to 24 March 2012. The landlord, BNP, however refused to reimburse M&S claiming that it had no obligation to do so under the terms of any of the leases.

M&S was initially successful in persuading the High Court that the intention was only to pay the year premiums as compensation for early termination of the leases. It was determined that M&S did not have to pay an extra two months’ rent as well and that a term should be implied into each of the leases to this effect.

However, the Court of Appeal disagreed. It held that a term would only be implied where strictly necessary to give effect to the true intentions of the parties. The starting point in deciding such cases is the terms of the agreement itself and, where parties have gone to considerable lengths to draft detailed leases and which contain specific provisions relating to a break clause being exercised, the Court will not readily depart from that written agreement. The Court stated that it must be shown “not simply that the term could be part of the agreement, but that the term would be part of the agreement”. Accordingly, the rent was not apportionable and M&S was not entitled to a refund.

Tenants should, therefore, beware. If a tenant wants to be able to claim back any rent referable to a period following expiry of a lease, the lease must include a clearly worded apportionment clause to this effect.


Jackson reforms – one year on
Tuesday 3rd June 2014

It's difficult to identify any benefits from the Jackson reforms in the area of commercial litigation.

Costs budgeting has perhaps not proved to be as troublesome as many had feared, but it's still 'early days', and, by its very nature, there is a long lead time before we really see its full effects. However, based on experience so far, it is far from convincing that the cost and time involved in preparing costs budgets (and monitoring and updating them) is proportionate to whatever benefits may ultimately be obtained.

The new menu of disclosure orders has been largely redundant. Courts are still, quite rightly, making orders for standard disclosure in the vast majority of cases, and it's difficult to see what disclosure statements have achieved other than to add yet another layer of cost. Indeed, one of the over-riding problems of the reforms is that they fail to recognise that, by and large, the way to reduce legal costs is to reduce the amount of work required in litigation rather than to insert new steps.

Access to justice has been depleted considerably. The irrecoverability of success fees and ATE insurance premiums has prevented many good claims from getting off the ground. DBAs have not proved to be a solution to this, with hardly any being entered into.

The biggest fiasco has been the new rule on obtaining relief from sanctions and the effect of the Mitchell decision. Because of the increased possibility of a party's obtaining a 'windfall' from an opponent's procedural default, we have, for entirely understandable and proper reasons, seen co-operation between parties disappearing. This has 'turned the clock back' 15 years to the pre-Woolf era, and it will take a consistent set of decisions from the Court of Appeal effectively undermining Mitchell to restore sanity.