Posts

Alternative Dispute Resolution

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  George Orwell said, “The quickest way to end a war is to lose it.”  Sometimes in litigation, such as debt collection or injunctions, you can overwhelm your opponent’s trenches at an early stage.  However, often in litigation, it is not over by Christmas. In the way that War Ministries are now called Defence Ministries, sometime in the last few years Litigation Departments became Dispute Resolution Teams. The “team’s” mission is to find a resolution to your dispute rather than just open hostilities and see how it goes, which seemed amongst clients to be the preferred method for centuries, or certainly as far back as I can remember. Apart from mediation and tribunals, there are two other main alternatives to a court case: Arbitration - This process replaces courts and judges and their resulting delays and red tape.  Nonetheless, arbitrators produce their own delays and red tape and arbitrations can be presided over by people who are not judges but have always wanted to be.  The popular

How Landlords Can Wrest Defeat from the Jaws of Victory? - Difficult but Not Impossible

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  Courts usually apply the same judicial consideration to a dispute of $1 or $50M, whereas for commercial landlords, rent arrears of $1 are bearable, but anything over $50 can be stroke inducing. Often landlords adopt the immediate, aggressive and highly satisfying response of kicking out the tenant, changing the locks and using a security guard to bar the door. There is some fancy legal footwork that the tenant can use to seek relief from forfeiture, but the court will usually not give any such relief if the tenant owes rent and does not repay it before the hearing, which understandably, is not an option for most defaulting tenants. The landlord’s legal and other costs are claimed from the tenant. Like administering electric shock treatment, landlords often find it hard to stop and the blitzkrieg continues with the issue of court proceedings. At that stage, there is an overwhelming urge on the part of the landlord to stop spending money, impose unreasonable, humiliating terms of settl

Commercial Landlords Ejecting Tenants: More Strategy Less Testosterone - It’s Cheaper

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The first sign that your tenants will stop paying rent is that they will start being nice to you. Treat birthday cards, chocolates and even enquiries as to your health with suspicion.  Landlords may not be universally popular, but they can take comfort in the fact that courts love (or at least don’t dislike) them and hate commercial and retail tenants who cannot pay.  Nevertheless, court actions do cost money, especially if the proceedings are defended, and as much as judges love landlords, they can go all legal.  For instance, they can find that your Notice of Default was defective because: it is not clear enough;  it does not give enough time;  it contains an incorrect important fact or figure;  it is issued to the wrong person; or  it is not served in accordance with the lease.                                                                           In fact, judges can find all sorts of defects in your notice.  You could always serve another Notice of Default to correct the error,

Should Tenants Hate those Leases to Pieces?

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Landlords are not nice people. Something seems to come over people who own property and rent it out.  Once you understand that they get a lot easier to deal with.  I know some people who may not be landlords but who instinctively  have the temperament for it. On the oth er  hand, most landlords struggle to be nasty—but we all usually manage it in the end. The main tool of the landlord is the lease. When landlords select a form of lease they generally opt for the Terminator variety rather than the Winnie the Pooh model. Leases are a minefield for the unwary. They contain delayed action mines that can go off months or years later—usually when your business is facing its darkest hour. With most new businesses failing within the first two years you can probably understand w hy landlords are a little paranoid. Even after trying to find out where to sign, sometimes made easier by helpful red  sign here  stickers, often commercial leases remain unread by the tenant, all twenty-five plus pages

The Defences to Defamation

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If you are a person of strong views, who calls a spade a spade the law of defamation will protect you if what you have said is true or substantially true. Even where what you have said proves to be untrue there are defences : 1. Absolute Privilege. If you are repeating something said or otherwise published in parliament or some other judicial type body. Therefore, if you can convince your local MP to mention in parliament your neighbour’s drunken, cursing, fence disputing, lousy child raising behaviour, then you can tell the world with impunity. 2. If you are summarising public documents or reporting on public proceedings providing you, do not stray too far from an honest appraisal. 3. Qualified Privilege. If you give information to a person, who has an interest in being told that information and you act reasonably without malice, e.g. If you mistakenly inform the police that your neighbour is a serial killer (not an uncommon suspicion). However, to post it on Instagram with photograph

Defamation- What Is The Damage?

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  All coppers are bastards, or at least that is what most football crowds would have you believe.  Yet, despite it being broadcast to the nation and repeated on Match of the Day, policemen do not tend to sue for defamation. This is more because defamatory statements are usually ignored or treated in kind rather than police officers having a sense of fun. As an alternative to violence (or a good kicking in the back of a police van), a court action for defamation comes as a poor second.  Most people want a grovelling apology and compensation.  They usually settle for an early apology and modest or no compensation even if they have a strong case.  Nevertheless, they can also enter into a death struggle with their intransigent defamer as they face the anxiety of a trial with their homes on the line, until both sides spend some money and decide it is not worth it, or their spouses tell them to knock it off. As the defamed, you can claim for financial loss such as loss of business, customers

Fights with the Media

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   A newspaper once held the front page, “Local priest arrested for child pornography”.  Except for publishing the wrong priest’s picture, it was a great scoop.  The editor apologised immediately and was forgiven (save for judgement day when he will probably get it in the neck).     When you get your fifteen minutes of fame, will the newspaper editor apologise to you immediately?  Answer: probably not. Your attempts to explain catapult your picture (the correct one) with defamatory comment onto the front page.    Even your spouse finds the criticism a little harsh, which shows you just how bad it is.    You see your lawyer.  He is outraged and advises you to burn down the newspaper office and run the editor out of town on a rail.  But you insist on using the law.  Disappointed, he writes a letter to the newspaper and a lawyer responds offering you the chance to put forward your side of the story.  You are reminded of your attempts to explain so far.  You threaten and then commence lega