General Interest News
Maples Succeed in Abuse of Process Application
In a Criminal Case involving an allegation of Driving Without Due Care and Attention, we made an application to the Magistrates to stay the prosecution as to allow the case to proceed could bring the administration of justice into disrepute and the Defendant may not have been able to have a fair trial.
The application was upheld by the Magistrates resulting in the case ending against our client who was naturally delighted with the result. It is exceptional for such an application to be successful as the basic principle is that it is for the Prosecution and not the Court to decide if a prosecution should be commenced and once commenced whether it should continue.
The application related as to whether a binding promise had been made as the Defendant had been told earlier in the case that there would be No Further Action taken against him. There was a review of the matter at a later date with the Prosecution indicating that there was further evidence which had not been available at the time. An issue was also raised by ourselves as to whether the Police had failed to investigate the matter in a proper fashion and material had not been recorded or retained when it was reasonable to expect that material should have been recorded and retained and that this may prevent a fair trial from taking place.
Commenting after the case Daven Naghen indicated:
“Its quite exceptional for the Court to intervene to prevent a case proceeding to trial, however this was an unusual case. It is important to remember that the Courts have an overriding duty to promote justice and to prevent injustice. It is pleasing to know that the Client has been spared the stress which comes with having to proceed to trial.
There is a great deal of case law to consider when making an Abuse of Process application and some cases point in favour of the Defence and others in favour of the Prosecution. Detailed written arguments were exchanged in advance of the hearing but were then built upon in oral submission before the Magistrates. It was important to appreciate that each case should be decided on its merits and that often cases can be distinguished from the current situation upon close analysis of the facts.”
Examples of where there may be an argument that there has been an Abuse of Process are where a fair trial is impossible, there has been a significant and unreasonable delay in bringing the proceedings, there has been adverse media publicity or where there has been bad faith or misconduct on behalf of the Police or Prosecution.
Maples thanked by Peele School
Maples have been thanked by the Peele Community College for the time that Daven Naghen gave in attending the school to assist the pupils to prepare for the Mock Trials competition.
Mr Naghen assisted the pupils in understanding the Court process and preparing for the Mock’s Trials event when the Peele Community College won through the local finals in Grantham and have progressed to the next stage, this being the finals in Birmingham to take place late in June 2010.
Maples is proud to continue it’s history of working within the community and it is intended that Mr Naghen, a criminal advocate within our firm, will again attend at the school for further coaching with the pupils, prior to the next set of finals.
Finally, our congratulations go out to the pupils who reaped the success from their hard work.
Helping achieve the best results in troubled times
Sometimes things go wrong in life. For example you fall out with your wife/partner, a customer fails to pay your bill or you get into trouble with the Police. These can be very stressful occurrences in your life, and sometimes you may be reluctant to seek help, and may be even embarrassed to do so.
Here at Maples we have a team of qualified and experienced lawyers who can help you with such problems and many others, helping you to achieve the best result in troubled times whether it involves a reasonable financial settlement following divorce, enforcement action in respect of an outstanding debt or representation at Court or the Police Station. We will help you by acting in your best interests, and in a caring and sensitive way so that you feel you have got someone on your side.
At the same time we can help you with more “positive” events in your life, like buying a house, planning your financial affairs or buying a business. Our team of lawyers are here to guide you through the processes and work on your behalf.
If you want help and guidance on any legal matter, no matter how big or small, then please either telephone us on 01775 722261 or email firstname.lastname@example.org.
Maples Victorious in Customer Care Award!
Maples Solicitors were today crowned winners of the 2013 Customer Care Award at the South Holland Business Awards.
Maples beat off competition from a host of other local Companies to scoop the accolade.
Maples would like to thank everyone who voted for us and we will strive to continue our good work and look to retain the Award next year!
Anita Toal, Grant Shackleston and Gemma Turton were all present to receive the Award on Maples behalf.
Temporary changes to the way we work
The way in which we provide some of our services will change from Monday the 23rd March 2020 following the Government’s advice on how to limit the spread of the Coronavirus pandemic.
We want to protect the health, safety and wellbeing of clients, visitors, businesses and our staff while we continue to provide services. That is why, is line with the current Government advice, we are making some changes to how you can interact with us.
Meetings shall now largely be conducted over the phone where possible to limit the amount of face to face contact. Also, where possible, letters and documents will be sent via email as there will be no staff in the office building since we are all working from home. We will however continue to collect post from the office.
We will continue to attend court and police station appointments unless the Government announces changes to how the courts and police stations operate.
To contact our offices please call 01775 722261 as usual and you will be directed to our receptionist who will take a message for you and pass that on to the relevant person. That person shall then call you back if needs be.
For new matters, please dial 01775 722261 or email email@example.com as usual.
There are further contact details such as email addresses under ‘Our People’ on our website at www.maplessolicitors.com.
We apologise for any inconvenience this may cause, however we shall continue to provide our services to the same standard as expected. If there are any issues arising from this, then please contact us as indicated above.
Maples Solicitors LLP
Tenancy Deposit Schemes – What do you need to know
Since the 6th April 2007 all deposits taken by landlords or letting agents for Assured Shorthold Tenancies (“AST’s”) in England and Wales must be protected by a Tenancy Deposit Protection Scheme.
There are two types of Tenancy Deposit Protection Schemes available for landlords and letting agents, namely insurance-based schemes and custodial schemes. The schemes are intended to:-
(i) Allow tenants to get all or part of their deposit back when they are entitled to it and make any disputes easier to resolve; and
(ii) Encourage tenants and landlords to make a clear agreement from the start on the condition of the property.
The schemes are required to provide a free dispute resolution service.
What is a Deposit?
A deposit for the purposes of this legislation is any money intended to be held (by the landlord or otherwise) as security for the performance of any obligations of the tenant, or the discharge of any liability of his arising under or in connection with the tenancy.
Quite often to try and evade the rules on Tenancy Deposit Schemes, landlords or their letting agents will instead take a payment of rent in advance from the tenant.
On occasions the Court have accepted that this is a payment of rent in advance rather than a deposit, but on other occasions the Court have not accepted the position. The Court have in effect deemed that the payment of rent in advance is really a deposit and should have been treated accordingly.
If a landlord is going to take a payment of rent in advance then to minimise the risk of a Court determining that it is really a deposit it is essential that the Tenancy Agreement is worded very carefully. For example the Tenancy Agreement must make it absolutely clear that it is rent paid in advance. If say there is a payment of three months’ rent in advance, then the landlord should not be allowed to demand or require any other payment of rent during the three month period. It is also good practice to expressly state that the rent is non returnable (either in full or in part) and that in this example the tenant (provided he has kept up to date with payments of the rent) would not have to pay any rent for the last three months of the Tenancy Agreement.
If these sorts of clauses are included within the Tenancy Agreement, then this will greatly reduce the risk of a Court determining that a payment of rent in advance is really a deposit.
Here the tenant pays the deposit to the landlord, who retains it and pays a premium to the insurer. Within 30 days after receiving a deposit the landlord or agent must give the tenant the details as to how their deposit is protected including:-
(i) The contact details of the Tenancy Deposit Scheme selected.
(ii) The landlord’s contact details.
(iii) How to apply for the release of the deposit.
(iv) Information explaining the purpose of the deposit.
(v) Information and guidance explaining what to do if there is a dispute about the deposit.
At the end of the tenancy if an agreement is reached about how the deposit should be divided then the landlord or agent returns all or some of the deposit. If there is a dispute then the landlord must hand over the disputed amount to the scheme for safe keeping until the dispute is resolved. If the landlord fails to comply then the insurance arrangements will ensure the return of the deposit to the tenant if they are entitled to it.
Here the tenant pays the deposit to the landlord or agents and the landlord or agent then pays the deposit into the scheme. Within 30 days of receipt the landlord or agent must give the tenant the details about how their deposit is protected as with insurance-based schemes (see above).
At the end of the Tenancy Agreement if an agreement is reached about how the deposit should be divided then the scheme will return the deposit divided in the way agreed by both parties. If there is a dispute then the scheme will hold the deposit until the Dispute Resolution Service or Court decides what is fair.
The interest accrued by the deposits in the scheme will be used to pay for the running of the scheme and any surplus will be used to offer interest to the tenant or landlord if the tenant is entitled to it.
What happens if the landlord fails to comply with the rules of Tenancy Deposit Schemes?
If the landlord fails to comply, then an application can be made to the Court and possession of the property by the landlord can be barred.
Either the tenant or the party that agrees to pay the deposit, who may be a guarantor or former tenant, may apply to the Court if the landlord:-
(i) Has not complied with the initial requirements of the scheme or has failed to give the tenant information about the scheme within the 30 day deadline; or
(ii) Having claimed that a particular scheme applies, the scheme’s administrator has not confirmed this.
If either is proved then the Court must order the party that appears to be holding the deposit to repay it to the applicant (e.g. the tenant) or (where the tenancy has not ended) pay it into a designed account under the authorised custodial scheme within 14 days beginning on the date of the Order.
The 30 day deadline is an absolute time limit and a tenant can make a claim from 31 days after deposit payment if the requirements relating to deposit protection have not been met.
The penalties for non compliance apply even if the tenancy has ended or where the landlord or agent protects the deposit after the deadline. The Courts will however take into account that protection has occurred when determining the level of penalty.
The penalty is a sum between 1x and 3x the deposit within 14 days of the Order date.
In addition a landlord who has not complied with the rules cannot use the accelerated possession proceedings triggered by serving a Section 21 Notice (two months’ notice) in respect of an AST. If the landlord fails to provide the prescribed information then it can serve a Section 21 Notice once it has done so. However failure to comply with the initial requirements cannot be remedied in the same way so that the landlord can serve a Section 21 Notice. The only options are for the landlord to return the deposit (or an agreed sum) or the bringing and disposal of a claim by the tenant in respect of the landlord’s failure to comply with the scheme (which will obviously involve the landlord having to pay a penalty).
An investor or successor landlord purchasing a property will not be free from the penalty/sanctions referred to above even if it protects a tenant’s deposit where the seller landlord has failed to do so. In these circumstances it is advisable for the investor/successor landlord to obtain an indemnity from the seller for any loss it suffers as a result of the seller’s non compliance.
If you are either a landlord or a tenant that requires advice about a Tenancy Deposit Scheme and or possession proceedings for a residential property then please contact Daven Naghen on 01775 722261 or email firstname.lastname@example.org or visit our offices or arrange an appointment at 23 New Road Spalding Lincolnshire PE11 1DH