From Medieval times a landlord has been able to recover rent by distress, namely entering on a property and removing goods to the value of the arrears.   This procedure weighed heavily in favour of the landlord and in its wisdom the Government has reformed this ancient remedy under a 2007 Act and The Taking Control of Goods Regulations 2013.

The Regulations provide some important revisions to the Law.   For example an enforcement agent (bailiff) must give 7 days written notice that he/she intends to come to the property for the purpose of taking control of a tenant’s goods.    This gives the tenant plenty of time to remove them!

Only rent arrears can be recovered this way, even if the insurance or service charge is reserved “as rent”.

So wiley the tenants may well only pay part of an invoice for rent and service charge, and specify that the payment is for “rent”, and not for the service charge.   This would prevent the landlord from pursuing action for the tenant’s goods to be seized for the service charge!   Is this not absurd?

Sometimes we feel that the Government in trying to redress one problem, or something that is unfair, can go too far the other way.

We all have notions as to what English Law is all about. We go to Law because we are looking for Justice. Do we get Justice and what does Justice mean? These are perennial questions.

Take a simple case, where a car driver has one account as to how the accident happened, and whose fault it was, and the pedestrian says something different. Who does the Judge believe? The pedestrian’s friends, who were with him at the time, all support his version, but the car driver was on his own, and so the Judge has to make a judgment based on the weight of the evidence. So one of them is going to leave the Court saying that the Judge was wrong and that he did not get Justice.

This is the nature of the beast. However, the Court procedure with which litigants are obliged to comply, has become more draconian because of a recent decision in the case of Mitchell. Before a civil claim gets to a Judge for trial, there are various procedural matters that need to be dealt with. The Court Rules require that the parties do comply with these procedural matters. However, for a variety of reasons one party may delay because, for instance, a witness cannot be found, someone has been ill or information which is required cannot be obtained in time. In such cases, the Court would normally given an extension of time and the parties themselves often agree to an extension, because such things do happen.

However, in the Mitchell case, the Judge was not prepared to give further time to comply with a relatively trivial part of an Order and struck out the defaulting party’s claim. This was the first occasion that there was a delay and was this really Justice? On the face of it, it has become easy now, because of this case, for one party to seek that a Claim be dismissed for a minor infringement of the Rules by his opponent. There may well be issues under the Human Rights Act because everyone should have access to Justice. It seems to me that the Courts are denying that access to Justice by imposing unjust administrative rules before a Claim even gets to trial.

“O just, but severe Law” as Shakespeare wrote it. After 330 years this should now read “O unjust, and severe Law”. Hardly progress!

Richard Bell