Newsletter Late Spring 2008
Welcome to the Late Spring edition of the Cleggs newsletter. We hope you enjoy it!
· Banks lose OFT test case. Well yes, but its not quite that simple. The decision of Mr Justice Smith runs to 119 pages, and concludes that the OFT has jurisdiction to challenge the fairness (or otherwise) of banks charging for unauthorised overdrafts. They had claimed that their charges were in fact fees for a service, and that their customers received a service even when their cheques were bounced. "If a bank declines to pay upon a relevant instruction, it supplies no, or no relevant, services by way of considering, processing or otherwise dealing with it," the judge said. "I am unable to accept that either the paid item charges, and guaranteed paid item charges, or the overdraft excess charges, are the price or remuneration, or even a part of the price or remuneration, that the customer pays," he added. However, the banks have until 22 May to decide whether they are going to appeal, and until formal guidance is given the many thousands of cases that are currently waiting for a decision to be made before the Courts will continue to be stayed. The Judicial Communications Office has said that "Attention has been drawn to the Judgment but it is clearly a decision for the judge in each individual case to decide what course of action to take." One important development will be when the OFT finally publishes its opinion on whether or not bank overdraft charges are excessive and unfair. If you believe you have been unfairly charged it's not to late to act-contact us for further information.
· A week’s pay used to calculate unfair dismissal basic and additional awards and redundancy payments increases to £330 from £310 as from January 2008. The maximum compensatory award that an Employment Tribunal can give increases from £60,600 to £63,000.
· Removing a mobile phone mast from your land is more complicated than you might think. The 2003 Communications Code allows operators to acquire and retain sites, subject to the confirmation of the County Court. Most operators prefer to acquire by agreement (ie a rent paid to the landowner), but what happens when the agreement terminates and the Landlord wants the mast removed, for redevelopment for instance? The Code effectively allows the operator to compulsory purchase the site-and the County Court can only prevent it if any prejudice cannot be compensated for by money or it outweighs any benefit to phone users. It’s a potential minefield, so if you are considering granting an operator an agreement, think it through carefully!
· Distress abolished The Tribunals Courts and Enforcement Act 2007 comes into force later this year, and instead of being able to send the bailiff in to seize goods for rent arrears, a commercial Landlord will have to use the new system of Commercial Rent Arrears Recovery (CRAR). Essentially it removes the self-help remedies that landlords can use at the moment, and Bailiffs will be called “enforcement agents”. However if there is any element of the property that is residential-even just one room- the CRAR process can't be used at all. Dodgy tenants could insist that there is someone living there, even if they aren’t-the only way around it is an express prohibition against residential use.
· The Rating (Empty Properties) Act 2007 came into force on 1 April 2007. Under the new provisions the 100% relief that vacant and industrial buildings used to get has gone, replaced by a 3 month rate-free period for non-industrial buildings and a 6 month period for industrial buildings. However, a temporary letting of at least 6 weeks starts the period off again.
· Damages-lost staff time A Claimant can recover damages for internal staff costs incurred in investigating and mitigating its situation, and needn’t show any loss of profit. All that is needed is to be able to demonstrate some significant disruption to the business. However, if you are thinking of such a claim, make sure your staff keep records of what they have been doing and how much time they have spent.
· Breastquest 2008 if you didn’t know, Cleggs are proud to be sponsoring Lou and Ali who have organised a motorbike trip around Europe to raise funds for breast cancer charities. If you haven't been to their website already, take a look at http://www.breastquest2008.co.uk. They leave the Market Square Nottingham at 2 pm on Saturday 19 July. One of our partners, David Vaughan-Birch, is going with them the first day, but can't get the time off to go any further than Harwich.
· Residential leases did you know that, if you have been a tenant under a long residential lease for more than two years, you have the right to have your lease extended? This can dramatically increase the value of your property-for further information look at the article on our website here.