For anyone who's ever had
their land stolen here is
the full text of an
article/essay/whatever that
I wrote recently. You
can also download it as a
free ebook via Smashwords.
Some things are written for
love. Some for
money. And some are
just revenge against the
legal profession.
Steal
a 15p sweet from the
corner shop and the
PoPo will pursue you
to a caution or a
Court hearing like
it’s the crown jewels
you stole but if the
shop steals your land
by, for example,
putting an illegal air
conditioning unit in
your garden … the PoPo
don’t wanna know.So for the pecuniarily
challenged in
possession of
non-liquid assets
there are many
internet forum threads
and newspaper articles
on Trespass to Land.
The
most common advice on
taking someone to
Court for any reasons
whatsoever (but
particularly trespass)
that you will find on
the internet is
“don’t” and “it’s not
worth it” and “the
land isn’t worth the
court costs you will
incur”.
Following
close behind are “you
can be made bankrupt
by losing a Court
Case” …and “it isn’t
always easy to recover
costs.”
A
small army of articles
and people will also
advise you for free to
pay for legal advice
that is expensive.I did not.
And
so it is that I have
written this short
essay dedicated to
many wasted man hours
trying to navigate a
jungle of passive
aggressive legal
nonsense and how I
beat through it to
justice.
I
am not a lawyer so
cannot dispense legal
advice but I can
provide you with a
metaphorical box of
matches with which to
burn off some of the
leeches to be found in
the Ulangan river of
unhelpfulness that is
England’s County Court
System by becoming a …
Litigant
in Person
I
have studied the
market for such
material as is here
reproduced and it
seems to me that what
is not available to
the financially poor
land owner is an
account of taking a
claim to Court and
perusing it end to end
- because usually
after a solicitor gets
involved people decide
to stay silent or give
up.So here is one.
I
have not used a
solicitor, I am not
staying silent and
this is my experience
as a litigant in
person (someone who
represents themselves
without a lawyer or
solicitor) end-to-end.
Yes.
this is my story of
what happened when I
filled in all the
forms myself, wrote
all the cheques
myself, wrote all the
words myself, made all
the statements myself,
attended all the
hearings myself and in
short represented
myself.
How
Trespass to Land
works
For
the uninitiated here’s
how trespass to land
works.
First
you buy a property or
a flat with a garden
and then the
government gives you a
bit of paper via an
overpriced solicitor
who you’ve employed
for fear of being
ripped off of your
life savings and this
piece of paper says
that you own a bit of
land.
Second.You discover that every other
greedy person in the
world wants to build
on your land.They put in
planning applications
to build on it without
asking you.Or worse they
don’t and actually
just start building on
your land anyway
knowing that even if
you take them to court
this will “cost
thousands” and take
about a year to do
anything about and if
you attempt to remove
what they built that’s
“criminal damage”.
Most
people with a life
give up … fortunately
for this story I
haven’t got a life.
Criminal
Damage
"The
rights of personal
property in
possession are
liable to two
species of
injuries: the
amotion [carrying
away] or
deprivation of
that possession;
and the abuse or
damage of the
chattels, while
the possession
continues in the
legal owner."
- Sir
William Blackstone
What
this means is – you
damage their stuff
moving it and it’s a
criminal matter and
the PoPo will be round
faster than you can
say Cressida Dick.The law on the amount of damage
you can do to a
structure or object in
removing it is
incredibly vague but I
believe the Criminal
Damage Act 1971
actually says that…
“defendant
will have "lawful
excuse" if
(a) at the
time ... he
believed that the
person ...
believed to be
entitled to
consent to the
destruction or
damage ... had so
consented, or
would have
consented had they
known ..., or
(b) he
destroyed or damaged
... the property in
question ... in
order to protect
property ... and at
the time ... he
believed—
(i) that the
property ... was in
immediate need of
protection; and
(ii)
that the means of
protection ...
were ...
reasonable having
regard to all the
circumstances”
As
to what that
“reasonable” means in
practice … no one’s
quite sure.In the case of
Chamberlain v. Lindon
(1998) when Mr Lindon
knocked down a wall
because it was
blocking a right of
way and legal minds
concluded that …
“In the
criminal context the
question is not
whether the means of
protection adopted
by the respondent
were objectively
reasonable, having
regard to all the
circumstances, but
whether the
respondent believed
them to be so, and
by virtue of section
5(3) it is
immaterial whether
his belief was
justified, provided
it was honestly
held”
…which
means as far as I
understand it that
you’ll probably get
away with doing
something legally
unreasonable if I
don’t tell you any
more about the law.So I won’t.The first rule
of Criminal Damage Act
1971 is don’t talk
about Criminal Damage
Act 1971.
In
the case R v. Hill and
Hall (1989) the
defendant (caught
trying to break in
to a naval base with
a hacksaw blade)
argued that it was
reasonable to do so
because the base might
attract an imminent
nuclear attack by the
USSR.However, eventually R forced Ms
Hill to admit that she
did not expect a
nuclear bomb to fall
today or tomorrow … as
R often does...
Trespassers
will … not be
prosecuted (at least
not by the PoPo)
So
violate Criminal
Damage Act 1971 and
it’s a potential visit
by PC Plod but when
some opportunist puts
the stuff on your land
illegally then PC Plod
stays in his nick and
nicks no one and
removing it legally
involves jumping
through more hoops
than a dolphin with
OCD.So unless you
can physically carry
the structure away -
which I could not
because it had mains
electricity and pipes
of cooling fluid
sprouting from it -
you need that most
mystical of all legal
remedies … an
injunction.
What is
an Injunction?
An
injunction a piece of
paper from the Court
telling someone to do
something…or not to do
something.In this case
what I required is an
injunction telling the
person who put the
thing that shouldn’t
be there to put it
somewhere.If they don’t
obey this order then
they are in contempt
of Court and can go to
prison.
This
system is so patently
absurd that not that
long ago the
government changed the
law on trespass to
land.Yes, after
many, many, many years
it finally came to
pass only recently
that squatting on
residential property
became a criminal
offence because in the
words of Dev Desai of
Pinsent Masons:
“It has
been highly
anomalous that
someone could, for
instance, break into
a home owner's
property and steal
their television and
face criminal
conviction, but
could move in to
that property whilst
the home owner was
on holiday and watch
that television and
not face criminal
charges for doing
so.”
…
but this doesn’t mean
you can’t nick part of
someone’s garden
because that’s not a
building you “live
in”.So one of the
most common forms of
trespass is garden thefts
trespass.
Also
the changes in the law
that came in back in
2012 don’t extend to
businesses.So you can
break into my home and
run a business from it
and (apart
from the breaking
and entering bit
being a crime) that’s
not criminal trespass
because you’re not
“living there”.Similarly you
can build an entire
new property or
structure in my garden
and that’s okay so
long as it isn’t
intended for
residential use.That’s capitalism for you,
baby.Business is
business but squatters
are scum who go to
prison.
But that
doesn’t mean an
Injunction will
work…
However,
even if you get an
injunction which is an
order from a Court
telling someone to do
something or not to do
something this doesn’t
guarantee to MAKE THEM do or not do
whatever is says...
If
they refuse to comply
with the Injunction
they are in Contempt
of Court and can be
arrested and sent to
prison.However, if the
Injunction says
“remove the air con
from the wall” and
they don’t remove it
and go to prison … the
air con unit is still
on the wall.
Getting
a bit of paper to tell
someone else to remove
something of theirs
from your land that
they put there rather
than just getting a
bit of paper enabling
you to remove it
yourself is, of
course, completely
arse about face if you
haven’t figured out
the point I’m driving
at by now.One wonders why
it is so.Perhaps the
truthful answer is all
property is theft… but
that’s rather deep…
Getting
an Injunction
The
reasons for the
existence of
injunctions are
tedious and lengthy
but the best paper on
the subject I could
find was “Is it
Injuctable?” by
Stephen Bickford Smith
of Landmark Chambers 4
Breams Buildings
London EC4A 1AQ.According to Mr Bickford Smith
historically
injunctions could only
be granted by the
Court of Chancery.Fog everywhere. Fog up the
river, where it
flows among green
aits and meadows;
fog down the river,
where it rolls....
Sorry
went a bit Bleak House
there.The Court of
Chancery got this
power via the now
repealed 1858 “Lord
Cairn’s Act” and now
it resides with your
local County Court …
Lord
Cairn’s Act
The
long and short of his
paper is that while
the court should
almost always grant an
injunction in such
cases as mine it
sometimes doesn’t.Which is about as clear as
lead...However, there
are he says 4 tests
that came from “Lord
Cairn’s Act” for
refusing an
injunction.An
injunction might be
refused if:
1)The injury to the Plaintiff’s
rights was small
2)The injury
was capable of being
estimated in money
3)It could
be compensated by a
small money payment
4)It would
be oppressive to
grant an injunction
The
paper then goes on to
speculate on all other
possible reasons an
injunction might not
be granted at great
length… before
concluding that in
terms of natural
justice the law is …a
bit rubbish, innit?
This
means that most
trespass claims are
actually settled by
people slashing each
other’s car tyres at
night and stuff like
that because this is
cheaper than going to
court.
The
Torture of Tort Law
Now
you might think that
in theory going to
court is simply a case
of reading the
country’s laws…
…but
sadly trespass isn’t
quite that simple
because trespass is a
Tort.
As
far as I can make out
that means that
although there is some
legislation scattered
about a lot of the law
in this area is the
result of about 1000
years of Judges sort
of making up
Judgements and case
law being derived from
their somewhat
inconsistent
pronouncements.Or to use a
technical legal term –
the law is pum.That said
Trespass to Land does
have a definition
which I think is…
“unjustifiable
interference with
land which is in the
immediate and
exclusive possession
of another”
So
in theory Trespass to
Land is easy to prove
since you don’t have
to prove ill intention
just that there has
been a trespass.
Note
that Land is defined
as the surface,
subsoil, airspace
and anything
permanently attached
to the land, such as
houses.And …
Possession does not
necessarily mean the
ownership of land,
but the right to
eject or exclude
others from it.Or that’s what I read on
Wikipedia (so don’t
bet your house on it).
But
then there’s also the
issue of…
Boundary
Disputes
The
next thing you will
discover is that there
is a lot of
inconclusive
information on the
internet about
“boundary disputes”.Boundary disputes are where some
cynical leech decides
that you don’t own all
or part of your garden
since part of it is
theirs… despite the
plans from the Land
Registry seeming to
say something
completely different.
Secure
in the knowledge that
unless you put in a
challenge for trespass
the land they have
stolen will eventually
become theirs by the
fact that no one has
previously sued them
inside the statute of
limitations they then
start a program of
annexation to rival
Hitler’s search for
Lebensraum.
I
think the effective
statute of limitations
on this is 6 years?
…but there may be
exemptions…I believe you
can argue that
although you are
outside the time limit
you didn’t know about
the trespass or
something so… consult
a lawyer… if you are
loaded but then if
you’re that wealthy it
might be more economic
to build a really big
wall with machinegun
posts and pill boxes.It’s working for Donald Trump.
The
Land Registry
Now
you might think a
course of action as
simple as reading your
Land Registry
documents could
resolve this.You would be
wrong... for it turns
out that many land
registry map documents
have precious little
relation to the land
they describe or are
not actually drawn on
any particular
projection or spheroid
or datum leaving a
margin of up to a
meter on many
boundaries.
Of
course this could all
be simply resolved by
someone at the Land
Registry learning to
use GIS mapping
software as the entire
planet is now
surveyed.However, such a
course of action
would, of course,
result in lots of
other errors coming to
light so it never
happens.Also, more
importantly, the small
army of solicitors who
make their living
protracting and
complicating these
disputes would lose a
source of regular
revenue.For the system
while it may not work
for the people
certainly works for
the legal profession.
Even
if there isn’t a
boundary dispute and
it is, as in my case,
absolutely black and
white and undisputed
where the boundary is
then someone will try
and convince you there
is a boundary dispute.
You
will then apply for
the title deed online
from Land Registry and
download a document
from the land registry
which says that if you
want the actual deed
you need to give them
another several pounds
because this one is
less acceptable in
court than the other
one.
In
my experience you
don’t as the Judge
neither knew nor
seemed to care about
this distinction.Leases are only available by
paper application
(£7).If, as in this
case, it’s a piece of
land without a door
number you might find
you have to ring the
Land Registry to find
your Title Number…
As
I have said before the
most common advice you
will receive about
boundary disputes is
the “legal costs will
be greater than the
piece of land you are
arguing over so it’s
better to move and
make it someone else’s
problem.”And people
wonder how the
Anschluss happened…
Remember
you’re working/middle
class.Justice isn’t
for people like you.Stop squabbling amongst
yourselves.Sorry tangent…
Googling
the Law
At
this point you will
decide that perhaps
you could solve the
problem by googling
it.Except, of
course, you can’t
because giving
unsolicited legal
advice when you’re not
a solicitor is
probably some kind of
crime and even if you
do find a thread on
the matter on a forum
it’ll be full of
people who have
exactly the same
problem as you and
gone on the internet
to rant about it
because they can’t
resolve it.
On
these threads a lot of
people with no
qualifications will
have started to give
the wronged party
advice on how to
resolve the problem
which is entirely
based on their
emotional feelings and
has little to do with
the civil procedure
rules which can be
found here...
Still
it makes them feel
good talking down to
someone else about
something that they
know nothing about and
that is what the
internet is for.It is for no nothings to
exchange no meaningful
information on – just
emotion.Added to this
taking someone to
Court for trespass
takes up to 12 months
minimum so by the time
someone has resolved
their problem they’re
unlikely to come back
to a year old internet
thread to post what
the solution was.
Finding
Representation
At
this point you will
think to yourself –
maybe I can resolve
this problem by
approaching one of
those people who
always advertise on
telly?The ambulance
chasing brigade will
sort it all out for me
for a cut.However, unless
it’s a cut and dried
case with a big payout
the ambulance chasing
brigade won’t be
interested.And even if it
is an open and shut
case they still won’t
be interested because
their business model
is based on bulk
volume processing and
anything that slightly
deviates from the norm
is just a fiscal drag
to them.
At
this point you will
phone your trade union
to tell them the
problem and they will
reply that this is not
a work related matter
so despite going on
and on about their
free legal advice
there are caveats.
At
this point you will
start to think maybe I
should shop around
with solicitors for
advice and you contact
your local high street
solicitor.You will then
discover your local
high street solicitor
does not understand
the problem either
because he is a not a
specialist but he’ll
kindly take time out
of his day to write
you an email like this
one:
Dear Mr
Miller.
Thank
you for your query
which I have
looked at briefly.This kind of dispute is not
straightforward.
An injunction
order is not
something anyone
is entitled to as
a matter of right.It is a discretionary remedy and
unless there is
some kind of
emergency an
application for an
injunction would
have to be made on
notice to the
other party so
they can attend
court to have
their say.
Fairness requires
both parties case
be heard.
My
hourly rate is
£220 plus Vat
and subject to the
other party
against whom an
injunction order
is required is not
our client, I
estimate our
fees for
advising you on
the way forward
and to the first
court hearing of
any application
to be £10,000
plus Vat and
court fees and
any
disbursements
for service of
any court order.
If
you wish to
discuss this
matter further we
will need to see
you in the office
with upfront
payment on account
of £660 plus Vat
for initial time
needed of 3 hours
towards any
meeting and
preparation
beforehand.
Regards
Mansoor
Yamin
Solicitor
While
I am sure Mr Yamin’s
advice is extremely
valuable I found the
cost of the initial
hearing to be ~£300,
the trial to be ~£545
doing it all myself
making the total costs
(excluding time, paper
and boredom) £845 all
in.So I’m not sure
exactly in what form
of Delphic wisdom the
extra £9100 would have
materialised in.Still, you can’t put a price on
wisdom.
That
said … if his charge
out rate is £220 an
hour + VAT if you back
calculate the number
of hours of work
involved … then again
that still doesn’t
justify £10,000 to the
first hearing.£10000 at £220
an hour = 45 hours.Personally I found getting to
the first hearing
involved filling in 2
forms, writing 2
letters and writing a
cheque so I enquired
how his calculations
had been conducted and
received this reply…
Dear Mr
Miller
I
refer to your
email to Mr Yamin
below.
My
name is Teresa
Barnett and I am a
solicitor in the
Family department;
Mr Yamin passed
away in November
2017.
You
have asked how Mr
Yamin came up with
his quote of
£10,000 plus VAT
and court fees. I
note from Mr
Yamin’s email that
he provided you
with an estimate
not a quote. Mr
Yamin wrote to you
on 6 February
2017, this was
over a year ago I
therefore do not
have any details
about your matter
and am unable to
ascertain how he
arrived at the
estimate he gave
you.
I
am pleased that
you achieved a
satisfactory
outcome and wish
you all the best
for the future.
Regards
Teresa
Barnett
Solicitor
…so
I’ll guess we’ll never
know how Mr Yamin came
up with this quote as
he has taken the story
to his grave.Perhaps he
terminally ill when he
wrote that letter
which might have
something to do with
it… but then again he
appeared in the High
Court in October 2017
where he won a libel
case so he can’t have
been that out of it.
Oh
well, swings and
roundabouts – one may
not be able to
complain to the Legal
Ombudsman now but at
least now I don’t have
to worry about him
suing me for libel for
faintly suggesting him
to be unscrupulous in
this essay.
Yes,
Like Fame … Justice
Costs.
And
right here’s where you
start paying.Maybe
Solicitors should have
meters on their desk
like taxi drivers so
you can jump out when
the price is becoming
prohibitive…The number one
principle of natural
justice underlying the
Civil Courts System is
that all lawyers and
judges should be paid
up front and/or
indemnified against
the risk of not being
paid.
If you
want an Injunction
you’re not a Small
Claim
In
the Small Claims Track
there are limits on
the costs that the
other party can be
awarded against you.However, even though the
monetary dimension of
a trespass to land
case may be small if
an injunction is
applied for then it is
judged to not be a
solely a monetary case
therefore it cannot be
allocated to the Small
Claims Track.Therefore the
online paper courts
are out…
…and
the defendant can run
up as many legal costs
as they like and if
you lose your case
these will be awarded
against you
potentially
bankrupting you.
Since
solicitors cost by the
hour obviously the
more you know before
you start the less it
will cost you so you
still have to do some
research to go down
this road of figuring
it out yourself anyway
unless money is
nothing to you.But then if
you’re doing all the
research what’s the
point in them then?
The
big problem with
solicitors is
ultimately you’re
buying advice and how
do you know it is good
advice and how do you
have a meaningful
conversation against
the clock?
Pro
Bono?
At
this point you will
consider pro bono
advice but of course
you don’t qualify for
it as you have assets
and even if you did
the forms are
incredibly complicated
and degrading and
you’d probably end up
with T.C. Rowley.To be fair to solicitors if they
give you all their
advice and knowledge
for free then you can
cut them out the
equation but this
leaves you buying
something you don’t
know the spec of
before you’ve bought
it and if they lose
your case there is no
recourse …. Unless you
can get someone to
take the case no win
no fee and … you
can’t.And, of course,
if it is rubbish
advice and you lose
there’s nothing you
can do to get your
money back ‘cus it’s
THE LAW baby…
That
said it seems to me
that there’s something
intrinsically wrong
with this section of
the economy because
while I don’t begrudge
in theory lawyers
being a closed shop …
it’d be nice to know
where the shops were.
There
probably is a
solicitor somewhere
who could do this case
for a reasonable
price, charges
reasonable rates and
doesn’t cost £220 an
hour but I couldn’t
find them.There’s no list
anywhere saying
“Solicitors who
specialise in
trespass” that I could
find so the cash had
to remain in the Cash
ISA.
Maybe
there was a
representation based
solution but if there
was … I couldn’t find
it.
Planning
Permission
By
this point you might
be attempting to use
other free legal
mechanisms for getting
unwanted structures
removed such as the
planning permission
laws.The problem
with this is that it
is actually possible
to put in for planning
permission on land
that is not your own
and get it.
I
discovered this when
the estate agent who
sold me the flat which
was at that time
directly above his
shop decided to put in
for planning
permission to extend
his office into the
communal garden.
Despite
the Land Registry
saying he did not have
the legal right to do
this he had managed to
put in plans to the
Council without
informing the
residents.And not back of
the envelope plans but
proper plans drawn by
an architect and
everything.The Council
approved his plans
because they can only
reject plans on
grounds like nuisance,
blocking out of light
and ruining the
character of the area.
If
you had to actually
own the land on which
you are applying for
planning permission in
order to build on it
the redevelopment of
town centres would be
a lot more difficult
because most are
actually achieved via
compulsory purchase.CPO is a mechanism that
previously used to be
reserved only for road
widening schemes but
now it is employed by
local governments all
the time for a never
ending series of
insane Stalinist 5
year plans to
encourage private
business by partnering
it with the state.But only when it is the right
kind of business that
will join a BID to
invest in more PoPo
but that’s a different
rant…
Councillors
Of
course the Council
will be far too busy
and snowed under with
paperwork to expedite
your trivial matters
so now will be the
time to get to know
your local Councillor.Fortunately I live in an ultra
marginal so my MP and
his minions were only
too happy to help in
pursing the Council
for updates…
Mr
Miller
I
received this
reply on Friday
but was out of the
office until
today.
“I
have just liaised
with the owner of
the premises
whereby I was
informed that
there has been a
delay in the
submission of the
application due to
confusion over the
required fee to be
paid.
Moving
forward, I’ve
informed the owner
that this case has
not been
progressed as
efficiently to
date but, the
submission of the
application before
Monday 24th April
2017 would be
mostly
appreciated. The
owner agreed with
my views and
intends to submit
the application
before the
aforementioned
date. Moreover, It
was made clear
that I will
contact him next
week if the
Council fails to
receive andapplication
before the
aforementioned
date. “
I will
chase this again
early next week.
Regards
Sara
Sara
Bashford
Senior
Caseworker for
Gavin Barwell MP
133 Wickham Road, Croydon,
CR0
8TE
…which
might have had
something to do with
the 2017 General
Election
Subject:
As today is a
holiday I have
time to write this
email...
Date:
Fri, May 5, 2017
16:15
Mr
Miller
The
application was
received by the
Council but didn’t
contain all the
paperwork required
to process it.
This has been
requested and I
will let you know
when I get an
update.
Regards
Sara
Sara
Bashford
Sent:
01 June 2017 13:42
Subject:
Re: As today is a
holiday I have time to
write this email...
Sara
You know
you're not supposed
to use a
parliamentry email
address during a
general election...?Dont worry I havent told the
Labour Party...
Erm...
However I found a
way of getting the
Council to answer.I put in an FOI.They said
they'd set a
deadline for last
Wednesday for return
of the
missing/corrected
documents by the
shop.
Cheers
Anthony
Miller
Sent:
01 June 2017 13:45
Subject:
RE: As today is a
holiday I have time
to write this
email...
Mr
Miller
Thank
you. However, as
we are doing
casework we can
still use our
Parliamentary
email address, the
rules changed for
this election. We
have changed our
sign off so it
doesn’t show the
letters after
Gavin’s name. I
have to say this
is much more
sensible as we
aren’t doing
anything
political.
I
am pleased the FOI
worked. It is a
shame it has to
resort to that to
get a reply.
Regards
Sara
Etc
Noise
That
said in this case I
did get the Council to
refuse planning
permission on the
grounds of noise.However, this and the legal
threats from the
Council did not seem
very expeditious in
removing the air con
unit.For one thing
while it was possible
to force my nemesis
through the
bureaucratic torture
of retroactive
planning permission he
seemed to know how to
play the bureaucratic
system as cynically as
possible by taking
forever to send in
forms or by sending in
forms that were
incomplete so the
Council had to chase
him for further
information.
Discretion
Even
if you get a planning
permission rejection
that doesn’t
automatically result
in the offending item
being removed…Enforcement is
a discretionary local
authority power
meaning the local
authority doesn’t have
to do anything about
it except talk to
someone sternly unless
they’re in the mood.
Never-the-less
I did feel that
planning rejection was
an important step
towards the removal of
the object.I needed to
prove that he had no
right to have the
object on the land and
the fact that his
lease said that he
needed planning
permission
strengthened my case
that the object should
not be there.
Lease
Violations
Of
course if like me you
are a Leaseholder you
can also sue someone
for Lease Violation
via the First-tier
Tribunal or wherever.All I can say is good luck with
that one.I think I’d
have been better off
shoving money straight
down the drain.
As
to having a quiet word
with the Freeholder …
Well,
he was the owner of
the offending shop and
air con so …erm …
Trespass
I thought was the way
forward.Much simpler I
thought.It was.
The
Citizens Advice
Bureau
At
this point you might
ask the Citizens
Advice Bureau.So I asked my
mate who works down
the CAB and he dunno
either…
People
you know
Having
exhausted all the
standard sources of
advice it’s time to
call in some favours
from old mates and
people you booked over
the years who you can
sell a good sob story
to.And see if you
know someone who knows
someone who knows
someone who’s a
specialist in this
area.Only to
discover you know
someone who knows
someone who knows
someone who’s not a
specialist in this
area.
Telephoning
the Courts
At
this point you will
have an idea like
telephoning the Court
only to discover that
they can’t give you
even the most remedial
procedural information
because this is
offering “legal
advice” and a
“conflict of
interest”.This won’t stop
them giving you
incorrect legal advice
like you should apply
to the Magistrate’s
Court when you should
be applying to the
County Court.Most of the
time they say all they
can do is tell you to
do is read the Civil
Procedure Rules
online.So you do that.
Letter
before Action
At
some point you will
write to your
neighbour/offender
registered post
threatening legal
action – what is
quaintly called “a
letter before action”.
They
will then ignore you
and smirk every time
they see you.
The
Royal Courts of
Justice Advice
Bureau
So
what to do?
Well,
eventually after I had
googled google to the
edges of the deep web
I came across this:
http://www.rcjadvice.org.uk/
The
Royal Courts of
Justice Advice Bureau.
This
is a secret sub-branch
of the Citizens Advice
Bureau which exists to
advise Litigants in
Person how to take the
case to court
themselves set up by
the government as a
sticking plaster over
legal aid cuts.I followed the
5 documents it
provides and in the
end it worked out for
me.
Of
course it’s possible
that it may not work
out for you!
But
here was my reasoning
for becoming a
litigant in person…
Why did
I represent myself
as a litigant in
person?
A)
The man I am suing is
a corner shop owner.The case I wanted to bring was
for the removal of an
overhanging air
conditioner/condenser
unit.It made lots of
noise and it was a
planning violation.The main aim of the action was
the removal of the
unit – not pecuniary
gain.Therefore I put
in for an injunction
and damages.
If
I spent several
thousand pounds on a
solicitor it is highly
likely that even if I
got a court order or a
CCJ against him I
would never be able to
recover this money.
B)
Because of A
solicitors aren’t
interested.This is an
argument over
approximately 1 square
meter of land.Therefore even
if I win the pecuniary
rewards are so
derisory that no
solicitor will do it
no win no fee because
there’s no winning to
be won really…
C)
The case is black and
white.It is clear
from the land registry
plans that he does not
own the land he’s
encroaching on.
D)
Even if I could
legally remove the
unit myself without
being prosecuted
myself for criminal
damage there’s the
matter of the
electrics and the
cooling fluid to the
unit that emanates
from his shop.I don’t want me
or an electrician or
workman to be
electrocuted.And I don’t
want to cause
environmental damage …
How to
fill out form N1
really badly
Not
being sure how to fill
in the forms and not
getting any useful
advice from the Courts
Service on this I
decided in the end to
just fill them in
anyway, send them off
and see what happened.
This
seemingly bad idea was
a good idea because
then my lack of legal
knowledge became the
Court’s problem.Whinge as they might endlessly
that they cannot give
out legal advice to
litigants in person
…neither could they
pretend that the
process had not
started.And neither
could they end it.And in the end if there are no
litigants the Court
makes no dough so …
They had to process
the documents.So if they
couldn’t process them
for procedural reasons
they would have to ask
me some questions
instead of the other
way round.I made sure to
say as much as
possible and write as
much as possible on
these forms because
you can’t get what you
don’t ask for.While I
couldn’t find much
advice on how to fill
out the form I did
find by googling the
forms that there were
scanned copies on line
and I used other
people’s forms as a
template to work from…
Triplicate
Triplicate
Triplicate
Just
to make life harder
you need 3 copies of
everything.That is every
form or piece of
correspondence - One
for you, one for the
court and one for the
defendant.This costs a
small fortune in paper
and stamps.Fortunately I
live not far from the
court so I was able to
pop a lot of documents
in by hand.
You
can keep a record of
time wasted, expenses
occurred and charge
the defendant for this
at the end of the
trial but frankly …one
couldn’t be arsed.Bureaucracy robs one of one’s
soul… It’s also very
important not to be
late with any letter.Letters are very important to
the Court.Not so
important that they
are going to waste
money sending one
recorded delivery but
important enough that
they’d strike your
case out if you didn’t
receive a letter from
them and so didn’t
know what timeframe to
act in.Or at least
that’s what they
claim.The defendant
wrote one letter in 12
months and the case
still dragged on for a
year so maybe you can
get away with somedisorganisation…
Not
being sure whether I
should object to the
air con unit as an
individual or as a
Director of the
Management Company I
decided to hedge my
bets and write a
confusing Claim Form
(N1) on behalf of
both.
The
Court wrote back and
said that I have to be
one or the other so
hedging my bets that
the Management Company
that owned the land
had the simplest case
for trespass I opted
to sue as an (elected)
Director.
Of
course theoretically
individuals could also
sue but they’d have to
start their own claim
and prove their own
claim over the land.As far as I understand it you
don’t need to be a
landowner to put in a
claim you just need to
prove you have a claim
of some kind on the
land … but it may be
more complicated than
that so I played it
safe.
N16A
The
Court also required me
to fill out a further
different form (N16A)
to seek an injunction
rather than just
pecuniary damages.They also require you to write
out the particulars of
the claim on the main
claim form.I decided, as
is my wont, to write
as much as possible
and let them do the
editing.
Cause of
Action
The
Court then decided to
write a letter asking
me to explain my
“cause of action”.Now you might think that
trespass of its self
is enough to be suing
someone for but no …
you have to have a
“cause of action”.Which is a…
“set of
facts sufficient to
justify a right to
sue to obtain money,
property, or the
enforcement of a
right against
another party”
In
other words you have
to prove you’re not
just suing on a
caprice.I have no idea
what this actually
means but I wrote a
long complicated
letter explaining the
bloody obvious and
they sort of gave in
out of boredom I
think.It is important
to claim for money and
an injunction because
you can’t
retrospectively apply
for an injunction if
you’ve just put in a
claim for damages only
and you can’t
retrospectively apply
for an damages if
you’ve just put in a
claim for an
injunction only … I
think.
Initial
Hearing Cost
And
of course they also
wanted money.£300 for the
initial hearing.Paying this wouldn’t be so bad
if getting a receipt
for the money so I
could claim it back
from the Management
Company in expenses
hadn’t been so
painful.In the end I
had to put in an FOI
to get a receipt
because “we don’t
usually give them for
cheques”.
When
it came to the Trial
fee I had to jump
through the
getting-receipts-hoop
again.Conveniently
the Ministry of
Justice is pretty much
exempt from Freedom of
Information
legislation so this
time I had to get my
MP to bully them.
Loneliness
The
biggest problem with
this process is the
loneliness.Even though you
know it’s clear cut
and black and white
what if you’re mad?With almost no one to guide you
it feels like walking
in the dark.There are a
whole load of what
ifs… What if I’m
wrong?What if the
defendant spends a
fortune on legal
expenses and I get
stuck with them?What if I rack up lots of costs
and then can’t recover
them?What if I
forget something and
lose on a
technicality?
The
way I decided to get
round these was to do
it in baby steps.First write a letter before
action.Then another …
then another … then
set a deadline.Then … put the
form in.Then get it
rejected … The put it
in again until it’s
not rejected.Then see if the
defendant puts up a
defence.
In
the end the defendant
did not put up a
defence until a week
or two after the first
hearing and this was
written on 2 bits of
paper.While not a
serious or plausible
defence this meant
that the matter had to
go to trial…
The
First Hearing -
Directions
At
the first hearing the
Judge insisted on
seeing the Land
Registry title deed
but didn’t seem very
interested in the
leases.Having
confirmed to himself
that we did indeed own
the land he then,
noting that the case
seemed not to be
defended, proceeded to
tell us he would set a
trial date.
The
defendant did not turn
up in person at the
first hearing or
submit a defence.
Many
years ago I used to
work in the Courts
system – in the
Tribunal Service – and
it was good to see
that the Courts had
lost none of their
visual elegance.I still enjoy functional
buildings, boring
furnishings, tannoys
that are too soft and
water fountains that
have run dry so I felt
quite at home.In the corner
of the waiting room
were two small offices
on one of which was a
piece of paper saying
“Free Legal Advice”.Well, they hid that well.Other than that
waiting round to be
heard can be a mildly
entertaining exercise
in what Stan Laurel
used to call lobby
watching.The upper
middle class solicitor
giving instructions to
her kitchen fitters
over her mobile phone,
the social worker
intoning “I am for the
child”, the people who
expect the Judge to
wait around because
their legal council
has popped out for a
Café Nero… all ennui
is here.
While
it’s fairly easy to
wander into one’s
local Magistrate’s
Court, Crown Court or
the Old Bailey and
watch whatever
tragedy-in-reported-speech
one wants after
passing through a
metal detector and
being stared down by
private security
guards intriguingly
the Civil Courts seem
to take place behind a
door with a keypad
entry lock that the
staff have to open for
you.Although you
can probably ask to go
in they don’t make it
easy…
Anyway
here’s what happened…
We
went into a very dinky
courtroom where the
Judge asked to see the
title deed for the
land which I gave to
him to inspect.He then asked
more questions about
the ownership of the
land which I had
already answered in
previous
correspondence.He then said
“Well, I could grant
you an injunction but
I don’t want to make a
ruling that will be
struck down”.
Then
he got out a big book
of law and scoured it
and said “ah”.
The
Judge said that he
thought that the case
would have to go to
trial and he would
give the defendant a
final chance to put a
defence in.But, he said,
as the defendant
didn’t seem that
bothered we would
“dispense with
pre-trial checklists.”
Pre-Trial
Checklists
We
dispensed with these.
Witness
Statement
He
then said I needed to
make a statement to
the court which should
be paginated.I asked what
paginated meant and he
said numbered on each
page.
I
asked if it had to be
in any particular form
and he said “No” and
pointed me towards the
Civil Procedure Rules
online.
Being
Listed and the Long
Wait
And
this is where most
internet threads dry
up because the gap
between hearing and
trial are massive.Because we were seeking an
injunction rather than
just damages our case
was allocated to the
“Fast Track” which is
one of the slowest.This left a 5 month gap between
the 1st
hearing and the final
Trial hearing.
Soon
after the 1st
hearing the air con
had gone…
Offer to
Settle
But,
of course, you can’t
end the process unless
the defendant makes an
“offer to settle” so
despite the air con
being removed the
process had to
continue to judgement.I made a witness statement which
was yet another
repetition of the
particulars but signed
and dated.
And
at this about this
point the defendant
managed to summon up
the enthusiasm to put
in a defence which
consisted of about 4
or 5 lines on a page
of A4 and a photograph
showing the unit was
not where it had been
because he had removed
it.
Sigh.
Trial
Bundle
In
order to go to trial
you have to produce a
bundle of papers.This like everything else has to
be submitted in
triplicate but with a
spare copy as well …
so in this case
quadruplicate.
One
copy has to go to the
court between 3-7 days
before the trial, one
to the defendant, the
claimant needs one and
you need a spare copy
(presumably for if the
Court or defendant
loses theirs).It’s 2018 you
can’t expect them to
use a computer.
Paginate
Also
like the Witness
Statement it has to be
paginated (that is
page numbered).Since the
bundle was a
coagulation of other
documents I found no
fast or simple way to
do this and in the end
ended up writing the
page numbers on… by
hand …4 times.
The
Trial
The
trial was as tedious
as the rest of the
process.The Judge did
not ask us to stand
and seemed happy to
lead us through the
process rather than
expecting us to drive
the process.He seemed a bit
put out when he asked
whether I wanted to
swear on the Bible or
“take a solemn oath”
and I replied with a
lack of solemnity that
I didn’t suppose it
really mattered.
He
then said I had to
decide one way or
another so I swore on
the Bible and prayed
that Jesus would
forgive me for
ignoring Matthew 5:37.
He
was a bit annoyed too
when I explained half
way through the
proceedings that
actually the air con
unit had gone now
following an
enforcement notice
from the Council
planning inspector.
“You
could have mentioned
that at the
beginning,” he said.
Fair
enough but you could
have read the file
properly from the
start, mate, instead
of asking me almost
exactly the same
questions as the last
Judge did.
The
Trial Judge (a
different Judge to the
first hearing) was
businesslike and
looked as if he
enjoyed a good pie.He asked questions about the
leases and the Land
Registry documents…
and I was quite
pleased I had them all
as in the back of my
mind I had the feeling
he was looking for a
technicality to throw
the case out on.There were none.In this case I
needed, my lease, his
lease, the title deeds
of the land in
question, email
correspondence from
other enraged
residents, the Council
Planning Permission
Rejection and all the
previous
correspondence already
submitted in
triplicate again.
Easy
peasy…
However,
he did point out that
I hadn’t included a
copy of my witness
statement in the trial
bundle like it was
needed when it had
already been produced
in triplicate once
before.I felt he was
trying to
quadruplicate things.
Injunction
Refused
as Unit Removed
The
trial judge now
refused an injunction
on the basis the unit
had been removed and
there was no immediate
threat to anymore.
“So”,
I asked, “does that
mean if he puts it
back up again we have
to go start this whole
year long process
again?”
The
judge replied that it
was not his job to
dispense legal advice
or comment on the
machinations of the
law.
Well,
fair enough, his job
is just to cop the
lolly.
Noise
and Companies
He
also argued that I
couldn’t complain
about the noise of the
unit because I was
suing as a company and
“the company” had not
suffered just me as an
individual.I explained
that I was part of the
company and the
company is made up of
humans but he seemed
to have difficulty in
perceiving the company
as an emotional
gestalt or any kind or
as any kind of
emotional entity.From this I have determined that
companies are not
allowed to have
emotions.
I
wondered if he was
just trying to make
the case simple and
come up with a ruling
that was unlikely to
be challenged.I don’t think I
will be appealing the
point that companies
cannot have human
emotions or sleep
patterns and will
leave it to sink into
common law.
Anyway…
we could have also
sued the defendant for
nuisance but I went
for trespass as it is
the simplest to prove.You get what you pay for.Doubtless if
you pay thousands of
pounds for a solicitor
these are the complex
arguments they can
make for you… but
who’s got time?
At
lease one presumes so
… but maybe they just
pocket all the
bread... At the end of
the line I wanted was
an air con off my wall
not to bankrupt a
small business out of
spite.
Damages
He
awarded us £250...
“You’ve
put on your claim form
a sum of £1 to £1000
based on an illegally
parked car.How did you
arrive at that?” said
the Judge.
“I
just made it up,” I
said.
“I
thought you did,” he
said.“I’m now going
to give a ruling so
please do not
interrupt me.”
Me?Heckle?A Judge?I didn’t and he
promptly made up the
sum of £250.
Then
“Do you want to claim
any expenses?” he
asked.I probably
should have said yes
but, reader, I
couldn’t be bothered
with any more
bureaucracy.Expenses
therefore consisted
only of the hearing
costs of £845.00.This left the defendant to pay
£845.00 plus £250.00 =
£1095.00.I received a
letter stating he
should pay this
containing a
grammatical error
within only two weeks
by second class post.And a second letter saying the
same thing 4 days
later because they
forgot that they’d
posted the first.
We
said “Thank You” as we
left and he gave us a
look as if to say
“Stop Crawling.I’ve seen it
before.”I say I did
this all myself but I
did bring the company
agent with me although
what he did apart from
ask if he could charge
the company for his
time I couldn’t tell
you but I felt at
least it looked good
that I wasn’t
completely alone.
Actually
I wasn’t sure if the
Judge didn’t think I
was rude since I
hadn’t called him
“Sir” or anything
deferential.Then again I
don’t recall him
expecting me to and
there didn’t seem any
occasion to address
him by any title as
there were only three
of us in the room and
two of us speaking and
therefore there was
little occasion for
confusion as to who
was who.
As
we concluded he then
requested I take his
copy of the bundle to
take home and shred at
my own expense.
I
did.
£250
in damages for having
the unit installed for
9 months if you back
calculate that it’s £1
a day.If we include
costs as well it cost
him approximately £120
a month.
The
problem with this as
regards to natural
justice rather than
the law is that the
law only allows for us
to be compensated for
our
financial loss.It doesn’t take into account the defendant’s financial gain.
Therefore
if by illegally
placing the air
con/condenser unit on
our land the defendant
can increase his
turnover by more than
£120 a month then it’s
financially worth it
to break the law.And this is why the problem
keeps re-occurring.This is not the first time.I will spare you the saga of the
other air con unit and
the huge Times
advertisement.It has been a
long road of minor
infractions before one
reached the end of the
very long tether that
is actual legal
action.
Perhaps
£250 is the correct
sum but I have no idea
how it was calculated
or what these
calculations are based
on.Previous cases
I presume… or the
Judge’s mood.
Was it
worth it?
So
was it worth it?In financial terms probably not.In man hours certainly not...But to finally shut patronising
rude people up from
telling you black is
white like you’re
thick when you’re not
…Yes.And in terms of
not having to listen
to his air con anymore
definitely.
