Property litigation weekly update
This week's bulletin reports on the draft Building Safety Bill, recent case law on the service of Court proceedings during lockdown, the leasehold reform update and the introduction of Nightingale Courts. We also include positive news (providing much-needed escapism from Covid) along with further insight from around the firm.
Key takeaways from the government's Building Safety Bill
The government has published its landmark draft Building Safety Bill which follows on from the Hackitt Review that was undertaken following the Grenfell Tower fire in 2017. The Bill, once enacted, will introduce sector wide changes to seek to ensure that both newly constructed and existing higher risk residential buildings are made safer. Below we provide a brief snapshot of some of the key points from a property management perspective.
- The Building Safety Regulator
Central to the new regime will be a new and extended role for the Health and Safety Executive as the newly created Building Safety Regulator. The draft Bill sets out the regulator's function and its primary duties to secure the safety of people in or about buildings and improve the standard of buildings, with the ability to apply sanctions for non-compliance based on a new regulatory framework.
- Higher Risk Buildings
The new regulatory regime will primarily cover "higher risk buildings", which the government says is likely to include residential buildings of 18 metres or more in height or in excess of six storeys (excluding basements and certain plant space) and student accommodation, but will exclude hotels, care homes and hospitals.
- New dutyholder roles
The Bill introduces new dutyholder roles for developers and landlords, which will have a statutory duty to ensure that higher risk buildings will be safe when built and occupied. Where higher risk buildings are occupied (including existing buildings), the new roles of Accountable Person and Building Safety Manager have been created, whose primary duty will be to prepare a safety case report to be approved by the Building Safety Regulator that assesses the building safety risks and confirms what steps have been taken to manage those risks and how those risks will be managed.
- Building safety charges
There has been continuing controversy since the Grenfell fire as to who should fund the cost of cladding remediation and general fire safety works. Subject to the terms of any relevant lease, the cost of fire safety works may, in some cases, be recoverable through the service charge. The Bill amends the Landlord and Tenant Act 1985 and introduces a new service charge regime for "building safety charges", that will sit alongside existing residential service charge regulation. This will involve freeholders maintaining funds in a separate account, held by a financial institution. Leaseholders will have to pay the building safety charge within 28 days of an invoice being issued although they will have a right to challenge payments if they are not reasonably incurred or if the services or works are not of a reasonable standard.
- Duties on residents (including access)
The draft Bill introduces new duties on residents in relation to helping to keep higher risk buildings safe and sets out enforcement options in the event of non-compliance. For example, a leaseholder of a flat will be responsible for ensuring that any gas boiler in the dwelling is regularly serviced and kept in good working order.
If there are reasonable grounds to believe that leaseholder responsibilities are not being met, the Accountable Person for the building has the power to exercise certain rights. This could include seeking access to the dwelling in order to check whether the gas installation is being properly maintained or serving a notice on the resident requiring the boiler to be checked by an approved engineer. If the resident refuses, the Bill introduces a statutory right of access, to be enforced by the County Courts.
Following the firm's recent series of webinars on the Building a Safer Future consultation, we will be producing further briefings in the coming weeks on the draft Bill, which contains a significant volume of detailed reform, but if you would like any assistance or have any queries on this topic in the meantime please do not hesitate to contact the team.
Case law update: Melanie Stanley v The London Borough of Tower Hamlets  EWHC 1622 (QB)
A recent case highlights the flexibility of the Court when dealing with service of documents during lockdown. The case involved a dispute between Ms Stanley and a local authority. In February 2020, the local authority told Ms Stanley’s solicitors that it would not accept service by email, but that proceedings could be served by post at its offices. However, on 23 March, the nationwide lockdown was announced and the local authority's offices were duly closed.
Two days after lockdown had begun, Ms Stanley’s solicitors posted particulars of claim to the local authority's office address. Under the Court rules, service was deemed to be effective on 27 March and the council therefore had to file an acknowledgment of service by 9 April 2020.
The papers did not come to the council's attention in time and therefore no acknowledgment was filed. On 17 April, Ms Stanley obtained default judgment. Upon discovering the proceedings and the judgment, the local authority applied for the judgment to be set aside. Pursuant to CPR 13.3 the court is able to set aside a default judgment where it considers: (i) the defendant has a real prospect of successfully defending the claim, or (ii) there is “some other good reason” why the judgment should be set aside or the defendant should be allowed to defend the claim.
The local authority was successful on its application. The Court noted that new legislation (PD 51ZA) required them to take into account the impact of the pandemic. It held that Ms Stanley's solicitors were at fault for not checking whether service by post was still possible and should have known that the offices were likely to be closed. In these circumstances the solicitors should have contacted the local authority again to check how to proceed. The failure to do so was "a good reason" for setting aside the judgment.
The decision will be welcomed by those that have faced difficulties monitoring postal deliveries during lockdown. However, the case turns on its facts; it was the early stages of lockdown and the local authority had not yet had a chance to make alternative arrangements to receive post. If similar circumstances arose now, with the strictest lockdown measures having eased, the outcome may well be different. Organisations should therefore be careful to put in place and maintain arrangements to receive and review post whilst offices remain closed. Those dealing with the service of notices and/or court proceedings should also not rely on addresses for service provided prior to lockdown without checking that these continue to remain applicable.
Nightingale Courts to open in England and Wales
Following the announcement of lockdown measures, almost half of all courts were temporarily closed in March 2020. Jury trials were paused, but other hearings were able to take place with the use of remote technology. Although most courts have now reopened, as to be expected there is pressure on the court system due to a backlog of hearings resulting from the pandemic and court closures.
The Lord Chancellor has recently announced that 10 temporary "Nightingale Courts" will be opened across England and Wales, in order to ease this pressure on the court system. This includes civil, family, tribunals and non-custodial criminal cases.
In their announcement, the Government have placed emphasis on the fact that justice should continue to be served and that the temporary courts will boost court capacity, which will reduce the delays and deliver speedier justice.
These latest measures are combined with the fact that court staff, legal professionals and the judiciary have collaborated to prioritise cases to keep the justice system running throughout the lockdown, with up to 90% of all hearings going ahead using remote technology. The government has also announced a welcome £124 million investment across the court system to advance technological improvements and modernise court rooms.
Insight from around the firm:
- Wholesale Reform for Residential Leaseholders
- Webinar: Trowers Tuesdays: maximising inclusivity – sex discrimination and working parents
- Webinar: FD Network series – strengthening the balance sheet – could equity fundraising be the answer?
- The Suffolk Punch horse is rarer than the panda with fewer than 72 mares (females) left in the UK. A Suffolk Punch foal is the first in the UK to have been born using technology to determine its sex. It is hoped this new method could be used to save the breed as it makes it possible to select female foals to increase the breeding population more quickly.
- On 17 July 2020, Her Majesty the Queen conferred the Honour of Knighthood on Captain Tom Moore at an Investiture at Windsor Castle. In April, the WW2 veteran embarked on 100 laps of his garden and raised over £32million for the NHS.
- Renewable power has taken up a record share of global electricity production since the onset of the coronavirus pandemic, according to a Reuter's review of data, suggesting a transition away from polluting fossil fuels could be accelerated in the coming years.