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Tag Archives: Lord Neuberger

Neuberger explains his Arnold v Britton judgment

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Lord Neuberger, President of the UK Supreme Court, has offered useful insight into his intentions behind the controversial Arnold v Britton judgment that left holiday chalet leaseholders facing bills adding up to millions of pounds for services (critiqued here: Neuberger abolishes common sense).

In a talk to members of the Leasehold Valuation Tribunal* he underlined his commitment to a literal approach to be taken by courts when reading contracts, leases and legislation. But he rejects any suggestion that he has “changed the law” with the Arnold judgment. He considers the judicial art of “construction” – construing the true meaning of the document in question – and sets his judgment within the context of 40 years of judicial contractual interpretation. 

Construction
A judge’s role in “construction” or interpretation of contracts, is to identify the intention of the parties “by interpreting the words used in their documentary, factual and commercial context”, Neuberger said [referring to a case on wills in which he had made this point last year, Marley v Rawlings.] 

The principles for construing contracts and legislation were similar and leases should be treated no differently since, like contracts, they have “commercial consequences”.  

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Neuberger v M&S: was the BNP case really necessary?

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One has to ask: why did the UK Supreme Court even bother to hear, at vast public expense, the case of Marks & Spencer v BNP Paribas – in which M&S threw good money after bad in the hope of getting a few hundred thousands back from the landlords of their former London HQ in St Pancras Bay.

The money at stake isn’t the point. Was there a real issue of public interest such that the Supreme Court should have heard the whole matter again in order to come to the same view as the Court of Appeal a year earlier?

But the fact is that Lord Neuberger, President of the Supreme Court, is a man on a mission – to impose his literal interpretation of the world on the world of law. And this case was an ideal opportunity for him to drive the point home.

The legal point was simple enough: There was no term in the lease under which M&S would receive back prepaid rent after exercising a break clause and vacating the premises. So could such an apparently just and fair clause be implied into the lease “in the light of the express terms, commercial common sense, and the facts known to both parties at the time the contract was made”?  Read the rest of this entry

Squatting, adverse possession and the LASPO s.144 debacle

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Ancient Roman law gives illegal squatter £400,000 home. Or so you would think from the coverage of builder Keith Best’s Land Registry claim to have 35 Church Road, Newbury Park, Ilford, registered in his name.

The importance of the case is (or will be when it goes through appeals) that it should clarify how far the criminalisation of squatting (LASPO S.144) impacts on the law of adverse possession.

It’s a knotty problem. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 rendered squatting criminal if the occupier “is in a residential building as a trespasser having entered it as a trespasser”. The Act is in a sense retrospective. You fall within it even if you entered the premises before the Act was passed – in Best’s case around 2001. Best unfortunately staked his adverse possession claim after the Act came into force so the land registrar rejected it on the grounds he was an illegal trespasser according to the meaning of Section 144.

Adverse possession, far from being a Roman law, is covered by Schedule 6 to the Land Registration Act 2002 which says: “A person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application.” A further two years is allowed while the registrar contacts the registered owner (“the proprietor of the estate to which the application relates,“) plus others with a potential interest to see if they object to the transfer to a new owner.

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Judicial appointments and politicisation of ‘unaccountable judges’

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The starting gun has been fired on the politicisation of the (unaccountable) judiciary. The (unaccountable) House of Lords is to consider the issue – and what little commentary there has been since consultation was launched on 13 May has been (unaccountably) favourable. Parliamentary scrutiny is deemed a good thing, not least because the Judicial Appointments Commission is seen as a rather bad thing.

The remit of the House of Lords Constitution Committee inquiry ranges over various issues, but crucially it asks: “Should Parliament scrutinise judicial appointments?” High among its concerns is that “decisions made by individual judges now regularly provoke political and public debate and public confidence in the legal system has been tested”.

What this means is that the public – or more accurately the press and certain politicians – do not like some of the judgments that judges have arrived at. As a result, the cry has gone up that the judges are “unaccountable”. Here are some examples: Read the rest of this entry

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