Litigation FAQs

This is a question which often arises when a Bankruptcy Order is made in your circumstances. The key to understanding why you have been declared bankrupt is to understand how the Court has reached its decision that you are insolvent. Being insolvent means that you are unable to pay your debts as they fall due, as opposed to a “balance sheet” test where your assets are compared to your liabilities. The Court will have used the first test when considering whether or not to make the Bankruptcy Order.

It is likely that you would have been served with a Statutory Demand before the Bankruptcy Petition was issued at Court, and in law, if you fail to pay the amount due under the Statutory Demand, then the law says that this is evidence that you are not able to pay your debts as they fall due. This is probably why the Bankruptcy Petition was issued, and why the Court ultimately made the Bankruptcy Order.

It may be that you are able to apply to annul the Bankruptcy Order, which would mean that the Bankruptcy Order would effectively be cancelled. This is something that you would need to take legal advice upon, and if you were successful, then it could save you a lot of money.

Most booking conditions and the Association of British Travel Agents (known as ABTA) let operators make changes they consider to be small without paying compensation, but you need to check the terms and conditions of the holiday you booked in the brochure. However, if the change is a major one or “significant”, the Tour Operator must tell you as soon as possible. If you are unhappy with the change you can cancel your holiday and get a full refund or opt for compensation (this is often on a rising scale and is set out in the terms and conditions in your holiday brochure). Significant changes include moving you to a different resort or altering your flight time, although the significance of the effect of the time change on your holiday will depend upon how long you are away for. If the change involves you in extra expense such as booking into a hotel to catch an early morning flight you can accept this change under protest and reserve your rights and write to the Tour Operator to try and claim additional compensation for this increased expenditure.

Assured Shorthold Tenancies are governed by the Housing Act 1988.

If your tenant is not paying rent you may be entitled to gain possession of your property to have the tenant evicted and obtain a judgement for the rent arrears.

It is important that landlords do not attempt to remove tenants from their properties themselves or harass them in any way. This is an offence under the Protection from Eviction act 1977.

If rent is paid monthly and the tenant is 2 months or more in arrears a 'Section 8' Notice can be served on the tenant. This notice has to be in a particular form so it is a good idea to get advice before serving the notice yourself. The Notice expires after 14 days from the date it was served and after this date a claim for possession can be made.

The Court will consider the claim at a short hearing where the judge will decide whether or not a Possession Order should be made. If two or more months of rent are outstanding at the time of the hearing the Court has to make a Possession Order. If the arrears are less than this is up to the Court to decide if an Order should be made or not. A judgement for the rent arrears can also be made at the hearing.

If the tenants have not left the property by the date set by the Court at the hearing, Bailiffs can be instructed to remove the tenants. Once the tenants have been legally evicted you can re-let the property.

So long as you are able to make regular payments off the arrears you should be able to remain in your home because the court can make what is known as a suspended possession order. Under such an order you would not only be required to pay the monthly instalments due under the mortgage, but you would also have to pay a further amount each month so that the arrears are reduced over a reasonable period. It is a matter for the Judge to decide what would be a reasonable period of time, and you would need to provide details of your finances to the court to support your proposals for repayment and show that they are realistic. If a suspended possession order is made and you adhere to its terms, then you will be able to remain in your home. The only difficulty will arise if you default in either payment of the ongoing mortgage instalments or with regard to the monthly arrears payment. Any such default would enable the Building Society to apply for you to be evicted and they could do so without the need for a further court hearing.

Yes you can, by lodging a “representation” with the local council opposing the application within the relevant time period. If you contact your local council, they will send you a form to complete and will give you details of the date by which the representation must be received.

Any representation must be based around the Licensing Objectives which are

1. the prevention of crime and disorder
2. the protection of children from harm
3. public safety and
4. the prevention of public nuisance.

Once your representation has been sent in there may be some discussions between the owners of the premises, the local council, yourself and any other person or organisation which has lodged a representation to see if an agreement or compromise can be reached. If not then a hearing will take place before a Committee of Local Councillors who will decide whether to grant the application, refuse the application or grant the application with additional conditions or restrictions designed to promote the Licensing Objectives. There is then a right of appeal to the Magistrates Court.

From 1 January 2007, all companies and LLPs with a website or which communicate electronically (including by email and SMS messaging) must include certain information on their website and in their electronic communications. They must include:

• The company's full name – including any trading names;
• Its place of registration;
• Its registration number;
• Its registered office address

Otherwise, you will be committing an offence.
Example
“Widgets” is a trading name of XYZ Fittings Limited, a company registered in England under registration number xxxxx. The company's registered office address is xxxxx.
On your website, you could incorporate the required information on a 'contact us' or 'legal information' page.
The information needs to be included on all business related electronic communications (including business letters and order forms). You could make it part of you standard sign off details on your emails.

Remember that if you want to conduct transactions on-line, in addition to the general law governing the sale of goods which applies to physical transactions, you will also need to comply with additional regulations governing the process of trading on-line. These include the Electronic Commerce (EC Directive) Regulations 2002. These impose further requirements including in respect of information to be provided and the contractual process.

The advertisements on the radio are for Individual Voluntary Arrangements (IVA). An IVA is an agreement between you and your creditors whereby they accept a reduced amount, and you make monthly payments over a period (usually five years) to settle those debts.

The IVA would need to be approved by at least 75% of your creditors. The people behind the radio advertisements will charge a fee for preparing and supervising the IVA (often more than £1500).

There are a number of things you need to consider when deciding whether to enter into an IVA, or to declare yourself bankrupt to 'wipe out' your debts.

• Assets you own - If you own your home and there is equity in it, then an IVA may be more appropriate. If you declared yourself bankrupt, a Trustee in Bankruptcy would be appointed who could evict you from your home and sell it, in order to repay money to your creditors.
• No assets - Bankruptcy may be appropriate, as all of your unsecured debts would fall into the bankruptcy. There would be restrictions on you following the making of a bankruptcy order, until discharge, such as not being able to obtain credit, although you may not be able to anyway, due to a low credit rating.

Both an IVA and bankruptcy would prevent creditors taking action against you, such as bailiff visits etc.

You should take advice on this, as entering into an IVA will mean that you have to make monthly payments for the next five years before your debts are paid and bankruptcy can have serious consequences if you have assets.

Timeshare agreements are governed by the Timeshare Act 1992 and the Timeshare Regulations 1997. This legislation provides a minimum 14 day cooling off period for timeshare contracts, provided that the contract is signed by either party within the UK, or the contract is subject to UK laws.

Before you make the agreement, the timeshare company must give you notice of your right to cancel the contract at any time during the cooling off period. It is a criminal offence for the timeshare company not to do so. A cancellation form should be attached to the notice setting out your cancellation rights. If you wish to cancel the timeshare contract within the cooling off period, any monies you have paid to the timeshare company should be refunded; the same cooling off period applies if you are purchasing the timeshare by way of a credit agreement.

If you have a problem with a timeshare company within the UK the local trading standards office may be able to help, or the timeshare company may be a member of one of the timeshare trade associations.

It is against the law to sell any knife, knife blade, razor blade or any other article which has a blade or which is sharply pointed and which is made or adapted for use for causing injury, to any person under the age of 16 years.
The maximum penalty on summary conviction is 6 months imprisonment or a fine of £5000, or both.

It is strongly recommended that you take the following steps to avoid any liability:-

• Never assume the age of the young person. If in doubt ask the person their age and always seek proof.
• Always refuse to sell if no proof of age is produced
• Ensure that all your staff (including temporary and part time staff) are fully trained not to sell age restricted products to children.
• Regularly refresh the training of your staff. It is also good practice to maintain both a record of training and details of any refusals.
• Display the statutory notices for the sale of knives.
• Consider an 18 policy for the sale of knives.

You may well be able to recover damages through the English Court system. If your holiday was a package holiday, then you would be able to make a claim under the Package Travel, Package Holidays and Package Tour Regulations 1992. The Regulations would allow you to pursue a claim for compensation against the tour operator, who is liable to a customer for proper performance of obligations under the contract which you make when you book the holiday. This applies to obligations which the tour operator themselves may have failed to meet as well as obligations upon other suppliers of services within the package, such as the owners of the hotel. In this case, if the floor was slippery and there were no warning signs, then it is probable that would amount to negligence for which the tour operator would be liable. Any claim could include damages for pain and suffering and loss of amenity and also for any financial loss sustained and loss of enjoyment of the holiday.

Firstly, you need to look at what the contract between you was based on, and whether you have any proof of what was agreed. If you have drawings, or a written quotation giving the dimensions of the gate, then you can prove that you supplied goods exactly as asked.

If you were told the only requirement was for access by car, and not with a horse box, you still may be able to take action for the full sum, since he did not give you proper instructions. In that case the next step is to write a formal letter asking for payment within 7 days and stating that if he does not pay you will issue court proceedings against him. This is called a '7 day letter' or 'letter before action' and you will need to send this before you take proceedings via the small business claims procedure at the county court.

If he also runs a business, then remember to claim compensation and interest under the Late Payment of Commercial Debt (Interest) Act 1998. You can only claim if it is business to business transaction. The interest is currently 12.5% i.e. 8% over bank base rate, and you may claim it from when the debt falls due for payment.

If you do not have any proof, and you only had a verbal discussion, which is quite common, you might need to compromise as it would be difficult to win the whole amount at court. In that case, you should write to the customer, setting out the circumstances as you see them, and stating that you would be prepared either to alter the gates at your own expense, for full payment thereafter, or reduce your bill to allow him to have them altered.

The Licensing Act 2003 came into force in November last year. The old system of licensing administered by the Magistrates Court was replaced by a new system administered by local councils.

Under the new system all pubs, clubs and restaurants which serve alcohol must have a Premises Licence which will allow alcohol to be sold. The Premises Licence can be granted to a person, company, partnership or other recognised body. The Premises Licence in turn contains a requirement that there must be a Designated Premises Supervisor who is ultimately responsible for the Premises. To be a Designated Premises Supervisor, you must have a personal licence.

Before making your application for a personal licence you will normally need to pass an accredited or approved licensing training course and you will also have to obtain a Criminal Records Bureau Check or Subject Access Report from the police which will give details of any previous criminal convictions. You apply for a personal licence by making an application to your local council and paying a fee. You must also send a copy of the application to the police who will have the opportunity to object.

Further details can be obtained from our specialist Licensing Department.

A conviction for driving without insurance is an endorseable offence. Your driving licence will be endorsed with between 6 to 8 penalty points or, alternatively, you could receive a discretionary disqualification from the Court. You are also likely to have to pay a fine and prosecution court costs.

Under new police powers the Police are now able to seize a vehicle where a person is caught driving without a valid certificate of insurance or without a driving licence for that vehicle. The vehicle will be removed to a garage approved by the Police and you will only be able to recover the vehicle if you or your nominee produce a valid certificate of insurance and/or driving licence at a nominated Police Station. You will then need to take the Seizure Notice given to you by the Police to the garage together with the vehicle registration document or other proof of ownership and pay all charges in relation to the removal of the vehicle (currently £105) and storage (currently £12 per day). All this must be done within 14 days of seizure of the vehicle or the vehicle may be sold or scrapped.

The consumer is protected by the Consumer Protection Act 1987 which sets out guidelines on misleading prices. In cases where a shop is making a comparison with its previous prices, the previous price should be the last price at which the goods were available in the previous six months. The goods should have also been available at the higher price for at least 28 consecutive days during the last 6 months at the same shop.

A shop can however give notice that these conditions do not apply. For example, that the price had been available only in selected branches, or that the earlier price was only available for say one week previously. If the shop does not give you this information and you believe that you have been misled you can report the matter to the local Trading Standards Department who could consider a prosecution.

An application for a charging order is one way in which a creditor can enforce a judgment. If you either solely own or jointly own your home then the creditor can seek to secure the debt on your interest in the property. The question as to whether a charging order should be made would have to be considered at a court hearing, but it is unlikely that you would be able to successfully object. Once the charging order has been made and registered the creditor can simply wait for you to sell the property to be paid out of the proceeds of sale, or he can make a further application to the court to enforce the charging order i.e. ask the court to make an order for the sale of the property. The courts have a wide discretion when considering whether to make such an order and even when an order is made, it may well be suspended, perhaps whilst the debt is paid off in instalments.

There certainly is. Since March 2003 when the Sale and Supply of Goods to Consumer Regulations 2002 came into effect, if a consumer returns goods within 6 months of purchase it is assumed that they were defective when purchased and the onus is on the retailer to prove that they were not. Unless they can do so, you have the choice of either returning the appliance and having your money back, having it replaced, having it repaired by the retailer you bought it from, or having it repaired elsewhere and claiming the cost from the retailer. These are now minimum standards that apply throughout the EU to protect shoppers.

No. Since April 1st this year Local Education Authorities (LEAs) have been obliged by law to ensure that a child is educated in a mainstream school unless that is “ incompatible with a) the wishes of the parents or b) the provision of efficient education for other children”.

Even if it is considered that the presence of a disabled child would unduly effect the education of other children, if there were reasonable steps that could be taken to avoid such effect, then the LEA is obliged to take those steps.

This means that the LEA cannot refuse your child a mainstream education on the grounds that such an education cannot meet their needs or would be an inefficient use of resources.

Your LEA can still refuse to admit your child to your preferred choice of school on these grounds, although if they do so they will now be obliged to find another mainstream school for your child.

If you were to be refused your preferred choice of mainstream school, then you have a right of appeal to the Special Educational Needs Tribunal who would determine which of the two mainstream schools (your choice and that proposed by the LEA) your child should attend.

Firstly, you must try to negotiate with your neighbour. It is always better to try and reach an amicable arrangement, since you have to continue to live side by side. If that fails and she will not co-operate, then contact the local Council. They may send an officer from the Environmental Health section who will investigate and write to your neighbour to say they are looking into the complaint. If the nuisance goes on, they will measure the noise and if appropriate, issue a Noise Abatement Notice under Section 80 Environmental Protection Act 1990. This confirms the noise is a statutory nuisance - if it doesn't stop, she can be fined in the Magistrates Court, up to £5,000 with a further fine for each day it continues. She is entitled to appeal against this of course. If the Council refuse to bring proceedings, you may be able to bring these proceedings yourself, through a complaint in the Magistrates Court. Finally, another option may be to take proceedings in the Civil Court, for nuisance. You could seek damages and an injunction to stop it happening again. For all these procedures you need proof that the nuisance is substantial, so make a note every time you are disturbed in case you need it in Court.

You should notify the credit card company of the loss immediately. It is worth noting that you will not be liable for any loss arising after you have notified the company, however, you must confirm any oral notice by giving written notice within the following 7 days. If you are quick enough to contact the credit card company before the thief has had time to use the card, you will have no liability at all. Under the terms of the Consumer Credit Act 1974 and the Banking Code, you will be liable for no more than £50.00, even if you fail to notify the credit card company or the thief is quick off the mark.

The general rule is that once you have signed a contract, you are unable to cancel it. However, the law does recognise that in some circumstances this would be a harsh rule and in your case the Consumer Protection (Cancellation of Contracts Concluded Away From Business Premises) Regulations 1987 apply. This gives you 7 days in which to change your mind - a 7 day "cooling off" period. The contract must have been signed at your home or another person's home, or even your place of work, and the goods that you agreed to buy must cost more than £35.00 and the contract must have been signed following an "unsolicited" visit by the salesperson. It is vital that the salesperson's visit must not have been requested by you. If you had previously contacted the trader or company, who agreed to send someone to see you, then the law would assume that you knew what you were doing and that you had shopped around before choosing which seller to contact and invite in.

In a situation where a bankrupt has any assets which can be realised, the Official Receiver will appoint a trustee in bankruptcy and it is the trustee's job to realise those assets for the benefit of your creditors.

Any property, including your home, will form part of your estate, which will be dealt with by your trustee. This would equally apply to freehold or leasehold property and also to solely or joint owned property.

If your wife and any children are living with you at the property. then it is usually possible for the trustee to postpone any thought of selling the property until the end of the first year of your bankruptcy. This would give you time to make alternative housing arrangements, or would give the opportunity to your wife to buy out your interest in the property from the trustee. Clearly, a valuation of the property would need to be obtained and redemption figures would need to be sought from Mortgagees so that the amount of equity and therefore, the Trustee's interest in the property could be established. A suitable offer could be made to the Trustee and if it is accepted, then the sale of your home could be prevented.

It may be that there is little or no equity in your property and in such cases, it would not be beneficial for the trustee to seek an Order for sale. In those situations, the trustee would normally obtain a Charging Order over your interest in the property and although at the end of your bankruptcy your interest would be returned to you, the Legal Charge would remain, covering the bankruptcy debts and any costs and interest which would have to be paid from your share of the proceeds of sale when you eventually sell the property.

Your local authority have powers to deal with trees on private property which are in a dangerous condition. You should contact the planning or technical services department who will then come assess the condition of the tree. If the tree is deemed to be unsafe, they can serve a notice on your neighbour who must then comply with the notice. If he/she doesn't then the local authority will do the necessary work to make it safe and then recover the cost from the owner. The owner can make an appeal to the county court against the notice.
However, if your local authority decide that the tree is not in a dangerous condition, it does not have to take any action.

Airlines deliberately over book some scheduled flights to take account of what they call "no shows" - people who have a ticket that is refundable or transferable and choose not to travel on the flight they have booked. Using previous flights as a guide, airlines try to match seats to passengers. When they get it wrong and too many passengers turn up, somebody has to be "bumped" off the flight:-

Under European Community Regulations covering scheduled flights from European destinations, if you check in on time and are "bumped", you must be offered either a full refund, or a seat on the next available flight to your destination, or another flight at a later date of your choice. The airline must also offer you on the spot cash compensation of around £120 for flights up to 3,500km and £240 for longer flights. These amounts are halved if the airline can get you to your final destination within 2 hours (or 4 hours for flights over 3,500km) of your original scheduled arrival time.

You must be given a free telephone call to your destination, meals during your wait, and overnight accommodation if necessary.

As it was a scheduled flight, your claim is against the airline.

You should check whether the Debtor is in fact bankrupt. If the Debtor is local to you, then it may well be that a Bankruptcy Order has been made in the local County Court and you could make enquiries there. Alternatively, you could contact the Insolvency Service, who could provide you with necessary information.

If the Debtor is bankrupt, then you will be unable to commence legal proceedings against them and indeed from continuing any ongoing proceedings.

Once the Bankruptcy Order has been made, the Official Receiver will have responsibility for administering the Bankruptcy. In most cases, the Bankrupt should have told the Official Receiver that you are one of the Creditors and the Official Receiver will normally contact you and ask you to complete a proof of debt form. If this has not happened, then you should contact the Receiver and request the relevant documentation. Whether you ultimately receive any money is dependent upon the Trustee in Bankruptcy (usually the Official Receiver) obtaining funds from selling the Bankrupt's assets. Any funds that are recovered will be available to Creditors, but they are distributed in order and among the first to be paid will be the Inland Revenue, banks and usually the legal costs of the Creditor requesting the Bankruptcy Order, will be paid. Only once those preferential Creditors have been paid will any money be available to unsecured creditors and in most cases, it is unlikely that you will be paid.

The school Standards and Framework Act (SSFA) 1998, introduced a new framework for school admissions. A code of practice providing guidance on the new legislation came into force in April 1999. Part of the provision related to restrictions in infant class sizes and the new test to be applied by appeal panels when considering appeals relating to refusal of admissions to classes.

Subject to a few limited exceptions for infant class sizes of those containing 5, 6 or 7 year old children, there should be a maximum of 30 children. The change will take effect in relation to the school year 2001 and 2002. The effect of the changes in appeals procedures is that parents may need to tackle a new test for determining appeals which is much more difficult to overcome than the old test. The new test is too expansive to set out in this limited article. The difficulty is that the law has created a situation where both the old and the new rules may apply and it might be difficult for parents to understand exactly what test is being adopted for their child and for the class. As a parent you are being asked to grapple with difficult legal issues concerning statutory interpretation and case law and to argue legal points, which even lawyers find difficult. If you are in a situation of concern regarding the class size and the admission, or not, of your child to it, if you are aware of the new Act and the Code of Practice that will be a starting point in deciding what action, if any, you can take. This is a matter in which detail reference to the rules is a necessity.

Most banks and other lenders operate a credit scoring system which allocates points on the basis of your age, your occupation, whether you are a home owner, and so on. Whether you achieve an acceptable credit score will partly determine whether you are eligible for credit, but a lender will also often obtain a file kept on you by one of the credit reference agencies. These files will contain any information concerning any outstanding County Court Judgments and bankruptcies and will also include information concerning any previous or existing credit accounts that you have and give information as to whether those accounts are in arrears or not.

A lender does not have to tell you exactly why they have refused you credit, but they should give you as indication of the reason. If you are attempting to obtain credit for a sum up to £15,000.00, you have a legal right to know the name and address of any Credit Reference Agency that the lender has asked for details about you. You must make this request within 28 days of the last time you contacted the lender about the credit deal. The lender then has 7 days in which to provide you with the information. You can then apply to the Agency for a copy of your file and you should receive your file again within 7 days. If there is any entry in your file that is incorrect, you are entitled to write to the agency and ask them to change it. Within 28 days they should tell you whether they have removed or changed the entry. If they will not remove the entry, then you can within 28 days of receiving their letter send them a Notice of Correction, which will include the reasons why you say the entry in the register is incorrect. If the agency still declines to amend your file, then it must refer the matter to the Director General of Fair Trading for a final decision.

The Motor Insurers' Bureau is a body to which authorised insurers are required to be a member. It exists to compensate persons who have been injured by uninsured drivers, untraced drivers, or foreign motorists visiting this country or where the insurance company has become insolvent. It attempts to ensure that a person who is a victim of a driver in any of the above circumstances is treated no differently than had that individual had an insurance policy. There has been the introduction of new strict requirements in pursuing a claim through the Bureau. Failure to adhere to a somewhat complicated procedure may still deny entitlement to compensation. If you have been unfortunately injured in a road traffic accident where the negligent driver was uninsured, or you cannot ascertain the identity of that driver, then you should apply to the Bureau. Subject to certain exceptions you will then be treated in the same manner as if there had been an identifiable policy of insurance. Subject to certain restrictions you will be able to claim compensation for your pain and suffering and loss of amenity, as well as immediate losses arising from the incident.

Drivers within the first 2 years of passing a driving test are in a probationary period. If, during that period, they accumulate 6 or more penalty points on their licence, the DVLA will automatically revoke their driving licence when it is sent to them or they are notified by the Court.

This is not a disqualification, but the new driver will only be entitled to hold a provisional licence until they pass a re-test, which will restore their previous entitlements. Revocation will occur whether the penalty points are added following a conviction by a Court or following a fixed penalty.

Points accumulated before the test was taken will count, unless they were committed more than 3 years before the current offence. Points accumulated after the test is passed will count if the offence is within 2 years of the date on which the test was passed.

Unless the seller made any specific representations as to the condition of the car, you would have no remedy against the seller. The general principle here is 'let the buyer beware'. However if you had bought the car from 'someone selling in the course of a business' i.e. a garage, in that contract, the law implies conditions of merchantable quality and fitness for purpose and, dependant upon the facts of the case, you may well have been able to return the car and claim your money back, or claim compensation for putting the car right.