THE BAR PROFESSIONAL TRAINING COURSE

CIVIL LITIGATION & EVIDENCE SEM 14:

Student Instructions

I OBJECTIVES

SEM 14 DESCRIPTION
The purpose of this Seminar is to:-
i) review the legal research strategies to which you were introduced at the
commencement of the Course
ii) provide you with further practice in conducting such research
iii) introduce the brief in Higgins -v- James

II PREPARATION

Before the Seminar you should:-

i) review your introductory Lecture materials on Legal Research
ii) read the initial papers in Higgins -v- James and answer the questions attached to
these instructions

N.B. Although your Instructions ask that you settle Particulars of Claim you will do this
later, as part of Drafting 13 (Sem).

III AT THE CLASS

i) The Brief in Higgins -v- James will be introduced. The class will consider issues of
legal research arising on the brief and generally
ii) There will be a class review of your answers to the questions, attached

N.B. You will be expected to bring to the class written notes, which should enable you to
(a) produce an answer to the questions posed and (b) identify your research
strategy / sources employed.

IV PRACTICAL CONTEXT

The importance of legal research cannot be over-emphasised. You will know by now that,
whether on this Course, in pupillage or in practice, you will be faced with questions of law,
procedure and evidence which you cannot readily solve. You must know where and how to
find an answer, how to use time effectively and how to present information clearly and
concisely. The questions provide you with a further opportunity to practise these skills in the
context of a realistic, practical assignment.

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 THE BAR PROFESSIONAL TRAINING COURSE
CIVIL LITIGATION & EVIDENCE SEM 14:
Student Instructions

QUESTIONS

SEM 14 DESCRIPTION
1) Assuming that Mr. Higgins does indeed have a tenancy, what sort of tenancy is it?
(Your answer should identify the precise nature of the tenancy e.g. by reference to
the principal legislation which regulates its security of tenure - it is not sufficient
to state that the tenancy is a periodic tenancy).

2) What is the leading case on the distinction between a lease and a licence? What
sort of factors might lead a Court to conclude that an occupier is, in fact, a
licensee?

3) At common law, what terms would be implied into the agreement between Mr.
Higgins and Mr. James in respect of Mr. Higgins peaceable occupation of the
property?

4) What are aggravated and exemplary damages?

5) What legislative provision creates a tortious liability in respect of damages for

unlawful eviction?

6) Can a licensee sue for damages pursuant to the legislative provision identified at 5,
above?

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 CIVIL LITIGATION & EVIDENCE SEM 14:
Student Instructions

IN THE MATTER OF PROPOSED

PROCEEDINGS

BETWEEN

MR. PETER HIGGINS Claimant

-and-

MR. DANIEL JAMES Defendant

____________________________

INSTRUCTIONS TO COUNSEL
__________________________________
LAA FUNDED

Wills & Pennington

The Old Courthouse
Temple Way
Nottingham

Ref: IAP/bc/Hig/014

Solicitors for the Claimant

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In the matter of proposed proceedings:-

BETWEEN

MR. PETER HIGGINS Claimant

-and-

MR. DANIEL JAMES Defendant

______________________________

INSTRUCTIONS TO COUNSEL
______________________________

COUNSEL WILL FIND HEREWITH:-

1. Draft witness statement of Peter Higgins

2. Mr. Higgins list of missing belongings
3. Letter before claim to Defendant, Daniel James

Instructing Solicitors act on behalf of the proposed Claimant in this matter, Mr. Peter Higgins,
who has been the victim of recent incidents of harassment and has now been forced to leave
his accommodation at Room 5, The Firs, River Street, Nottingham. Counsel is respectfully
referred to the draft witness statement of Mr. Higgins for details of the circumstances in which
he commenced occupation together with details of the incidents which caused him to leave.

Instructing Solicitors have today granted Mr. Higgins an emergency certificate pursuant to
their devolved powers with a view to pursuing an injunction against Mr. James, initially on a
without notice basis. It is hoped that Full Representation will be granted in due course to
pursue a claim for damages.

Counsel is instructed to settle Particulars of Claim as a matter of urgency, in respect of which it

is hoped that the draft witness statement will provide the necessary information. Instructing
Solicitors have spoken with Counsels Clerk and understand that Counsel will be able to deal
with these faxed instructions during the course of this afternoon.

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Should Counsel have any queries, Instructing Solicitors Mr. Pennington will endeavour to
assist.

Dated 15 November 2016

Wills & Pennington

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 CIVIL LITIGATION & EVIDENCE SEM 14:
Student Instructions

Claimant
P. Higgins
1st
PH 1
Dated

IN THE COUNTY COURT AT NOTTINGHAM Claim No.

BETWEEN
MR. PETER HIGGINS
Claimant

-and-

MR. DANIEL JAMES Defendant

________________________________________________

WITNESS STATEMENT OF PETER HIGGINS

________________________________________________

1. I am the Claimant in this matter and make this statement in support of my application
for interim injunction orders against the Defendant. Except where the contrary is
stated the contents of this statement are within my own knowledge.

2. Although I am residing temporarily at 55 Green Lane, Nottingham, my permanent

address is Room 5, The Firs, River Street, Nottingham. I am presently unemployed
and have occupied a room at The Firs since 1st May this year. It is a twin bedded
room with a washbasin and shared use of a sitting room, kitchen and bathroom
facilities. There are in the property 5 other similar bedsits the majority of which are
occupied by couples. The Defendant, himself, does not reside at the property nor, to
the best of my knowledge, does any member of his family. Although I have recently
been provided with room cleaning and fresh bedlinen weekly, no mention was made of
this before I entered into occupation. Indeed, for the first 3 or 4 months of my
occupation I used and laundered my own bedlinen which I had brought with me; I also
vacuumed my room using a vacuum cleaner which was kept under the stairs and to
which all of the residents had access. I have my own key to my room and am the sole
occupant. In all of the circumstances I believe that my status in respect of Room 5 is
that of a tenant.

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3. Although I commenced occupation of Room 5 on 1 st May the tenancy itself was granted
shortly before. At the time, I was living in a squat which was due to be demolished.
On 23rd April I met up with a friend, Jonathan Duncan, who also happened to know the
Defendant. Mr. Duncan knew of my predicament and when he told me that the
Defendant might soon have a room available I was, of course, interested. We viewed
the premises with the Defendant later that day when it was agreed that I could move in
on 1st. In return I paid the Defendant a holding deposit in the sum of 100.
Regrettably no written agreement was ever executed which, I would say, has been part
of the cause of my difficulties.

4. When I was granted the tenancy of Room 5 the Defendant and I agreed a rent of 100
per week. The Defendant was aware that I was in receipt of jobseekers allowance and
knew that my rent would be met all or in part by payment of housing benefit. Once I
moved in, I obtained and completed the relevant forms, declaring the rent as 100.

5. Not unusually there was some delay in determining my housing benefit claim. It was
not, in fact, determined until the middle of June. At that point I learned that, because
of the local housing allowance rules, the Local Authority would pay benefit of only
90.90. I went to discuss this with the Defendant on 21 st June; however, contrary to
our previous agreement he then alleged that we had agreed the rent at 110. He said
that since the Local Authority would only pay benefit of 90.90 per week I would be
liable for the shortfall, which he said was already, then, around 150. When I told him
that we had agreed a rent of 100 per week he vehemently denied this and became
extremely angry; he then threatened that he would put me out on the streets so that
he could take another couple who would pay a worthwhile rent.

6. Shortly after the incident above, the Defendant went on a planned holiday to visit
family in Australia. Whilst he was away there were no incidents of any kind and none
of the residents was any trouble. In view of the dispute as to the rent I paid nothing
towards the shortfall. From 21 st June, however, I tried to save 9.10 each week in
respect of the amount that I accepted I owed. By the last of the incidents referred to,
below, I had managed to save approximately 190 which I kept locked in a cashbox in
my room.

7. Towards the end of August the Defendant returned from Australia. The first thing he
said when he saw me was wheres the money you owe me. He then said youd
better get the money together or youll be out. I told him that I could pay him
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something towards the arrears and make up the weekly shortfall if he would accept
that we had agreed the rent at 100. He refused my offer and said he wanted all of
the money and soon. His manner was abusive and threatening. After that he would
verbally abuse me whenever he saw me; I would add that my mail then also began to
go missing. It was about this time that I received a note from the Defendants cleaner
saying that she had been told she was to clean my room. Although I thought this odd
in the circumstances, I decided not to make an issue of it. I did not keep a copy of the
note.

8. Following some further veiled threats to evict me in late October, I returned to my

room on 8th November to find that the water to my washbasin had been turned off.
Fortunately I was able to find the stop tap and restore the water supply. None of the
other residents was affected and there were no plumbing works being carried out, so
far as I am aware.

9. In the early hours of the following morning (at about 1 a.m.) I was woken by drunken
voices outside my door plotting to do me over. I recognised one of the voices as that
of the Defendant. I was so concerned for my safety that I barricaded my door and
remained awake all night although, fortunately, no-one tried to gain entry. I concluded
that it would be safer to leave for a couple of days in the hope that things would blow
over and left to stay with friends at about midday on 9 th. I took with me only a small
sports bag containing a few items of clothing and my shaving kit.

10. On 11th November I returned to the property to find that the lock to my door had been
changed. There was no sign of my belongings anywhere including my bicycle, which I
kept in the hall. I immediately telephoned the Defendant who told me that he had
changed the lock because he had been told by one of the residents that I had left and
because he was concerned that I had retained the keys. When I asked him what had
become of my belongings he said something like what belongings - there werent any -
you must have taken them with you when you left. I was both astounded and
outraged. Not only have I lost the cash I had saved, I now have only the clothing I left
with and am having to rely on the charity of friends. I refer to a list of the items taken
from my room marked PH 1.

11. Despite requests, including a letter from my Solicitors, the Defendant refuses to allow
me to re-enter my room since he claims that I left voluntarily. I have already set out
matters as they occurred and believe in all of the circumstances that the Defendants
actions were a calculated attempt to evict me from the premises.
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12. I am presently residing with friends in extremely limited accommodation but cannot
remain there indefinitely. I have been told by the Local Authority that they are under
no obligation to re-house me and I am unable to raise the necessary deposit to rent
alternative private accommodation. In short I have nowhere else to go.

13. I am making this application without notice in the first instance because I believe, in
view of his previous threat, that the Defendant, if served, would seek to re-let the
premises in an attempt to strengthen his hand. I am also concerned that if he learned
of my whereabouts he might cause me further harassment or worse. In all of the
circumstances I therefore respectfully request the Court to grant me an order in the
terms of my application.

I believe that the facts stated in this witness statement are true.

Signed:

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LIST OF MISSING BELONGINGS

Muddy Fox mountain cycle 500

JVC cd mini hi-fi system 300
Cds 200
Clothing (various) 200
Sanyo portable T.V. 120
Cash 190
Suitcase 30
Radio alarm clock 20
1560

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Messrs. Wills & Pennington

The Old Courthouse
Temple Way
Nottingham

BY HAND
Our Ref: IAP/bc/Hig/014 12 November 2016

Dear Mr. James

We have been instructed by Mr. Higgins who we understand is the tenant of premises which you
own, namely Room 5, The Firs, River Street, Nottingham. We are instructed that, following a
number of recent incidents, Mr. Higgins returned to his room yesterday to find the lock changed and
all of his belongings missing. We understand that you have refused Mr. Higgins access to the
property and refused to return his belongings.

We write to inform you that Mr. Higgins is legally entitled to enter and occupy the above property
until such time as his tenancy has been lawfully determined. In the absence of any consent from
Mr. Higgins you, as landlord, can only bring the tenancy to an end by issuing legal proceedings and
obtaining an order from the Court.

In the circumstances we write to inform you that, unless within 48 hours you allow Mr. Higgins to
return to the property and restore to him his belongings, we are instructed to issue proceedings
against you seeking an injunction, damages and costs. We trust that this course of action will not
prove necessary.

Should you be in any doubt as to your legal position we would respectfully invite you to consult
your own advisors.

Wills & Pennington

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