The Property Litigation Association’s current chair, Martin Edwards, and the chair of its law reform committee, Mathew Ditchburn, talk to EG about the PLA’s work supporting the sector and pushing for reform.
Seismic change for a profession traditionally used to a more glacial pace – that’s one of the things that drives Martin Edwards’ passion for the Property Litigation Association.
Now well into the second half of his year as the organisation’s chair, the Shakespeare Martineau partner sees the PLA as playing a key role in leading the profession into a bold new tomorrow.
“It doesn’t matter where you look now in our world, there is change,” he says. “I think the job of our association is not just to keep our members abreast of those developments and making sure we are up to date with what’s going on, but also to get involved with the debate.”
In such turbulent times, he says, it’s great to be a litigator: “Change brings more opportunity for dispute and conflict and that’s generally a good time to be entering the profession.
“Property litigation is involved in all major business challenges currently – whether you look at Brexit, smart cities or the recent flood of retail CVAs. In all those scenarios you will have, somewhere, a property litigator working in the background. I think the PLA is extremely important in giving a public voice to property litigation practitioners across the country.”
What does the PLA do?
The PLA is a national, non-profit association, open to lawyers involved in property litigation and property mediation. Founded in 1995, its focus splits roughly into two halves: education, training and networking for its members; and its law reform and lobbying operation.
As well as designing and delivering the PLA’s regular events, including its annual conference in Oxford and autumn training day in London, the education committee monitors, co-ordinates and advises on training activities in the regions.
The law reform committee is the representative body of contentious and advisory property lawyers and is an active lobbying voice in proposing changes to the law or providing critique on proposed reforms.
Around 70 people are involved on a day-to-day basis in running the organisation, with overall membership on the rise. “I’m very pleased because our total membership now is above 1,400. About two years ago we were at 1,200, so we have seen quite a growth over that period,” Edwards says.
“Around 47% of our total membership are women. We have 62% of members based in the regions, 38% in London, and our junior PLA members – that’s members who are up to 10 years post-qualification – account for 42% of our total membership.”
The Junior PLA – or JPLA – is “extremely important” to the association. As Edwards notes, “Obviously they are the future.” He believes that JPLA members get a “huge benefit” in terms of being able to build their own networks – not just with other litigators, but with other property professionals as well – citing the organisation’s close links with the Property Bar Association and the Royal Institute of Chartered Surveyors.
Edwards took over as chair last November, and one key highlight of his year so far is the introduction of a Northern training day to expand the association’s reach further beyond the capital.
“That was close to my heart because, prior to being chair, I ran the regions committee for the association and the objective there really was to try to widen our network across the country.
“Most of our events have been held in Oxford or London. Obviously, over the past few years we have seen that shift and making the Northern training day happen was something that I had as a real objective.”
And happen it did, in Leeds in June – and Edwards was present at an event that was “oversubscribed”, something he puts down to a great programme with excellent speakers, including PBA chair Joanne Wicks offering an update on rescission.
“Members in the room got a huge amount from the whole event,” Edwards says. “I’m pleased to say that will now be a fixture in our calendar.”
Looking to the future
During the rest of his year in the hot seat, Edwards is focused on trying to get “more engagement from our more experienced practitioners”, and giving more profile towards active lobbying for law reform – “making things happen and influencing change”.
He is full of praise for the efforts of the reform committee, chaired by Mathew Ditchburn, and is committed to the PLA doing what it can to take this important aspect of its work “to another level”. That’s a phrase Edwards uses more than once.
Expressing his personal delight that the PLA now has an industry heavyweight as its president – former chief executive of the British Property Federation Liz Peace – he says: “With Liz’s background in the commercial property industry, she is just the sort of person that we need there to help take us to the next level.”
His determination to raise the bar is clear – and, for the rest of his tenure, and beyond, the PLA won’t be doing things quietly.
“The PLA is committed to being at the forefront of developments in our field,” Edwards says, “whether that’s the debates on law reform or procedural change in the courts and tribunals. I think we can promise you will be hearing a lot more from us.”
The PLA’s reform agenda
“In the realms of law reform, the biggest challenge is actually getting the attention of government to change anything,” says Mathew Ditchburn, partner at Hogan Lovells and chair of the PLA’s law reform committee. “There are lots of areas in which our members think that the current law could be reformed and improved, and some of those cases are quite compelling.
“The Law Commission itself, in its 13th programme of reform, commented that shortcomings in leasehold property law are leading to rises in costs to the tune of hundreds of thousands of pounds and damaging the value of freehold property – and yet the government decided not to do anything about leasehold property law.
“We all know why that is – if it’s not Brexit, they are not interested. So that’s one of the biggest challenges that we face.”
Undaunted by that frustration, he believes this is a challenge that makes the reform committee’s job more important.
“It’s no longer sufficient for us just to write an article or have a meeting and talk about these pressing areas for law reform,” he says. “We have to be a bit more creative than that. Fortunately we now have Liz Peace, our president, and she is plugged into government, parliament and politicians. We are seeking to leverage those connections and use her to help further our reform cause.”
The committee works closely on reform with bodies including the Law Commission, the Ministry of Justice, HM Courts & Tribunals Service (HMCTS), the Bar and the RICS, while Ditchburn tries to ensure that “wherever possible we are reflecting the views of members”.
One particular area of focus in recent years has been the quality of court service. “Our members experience, shall we say, inconsistent quality – or indeed not very good quality of service,” Ditchburn says. “We get a lot of feedback from members about specific experiences, ‘the judge didn’t turn up’, that kind of thing.
“Three years ago we did a survey of all our members to get their views on the quality of court service. We plugged that straight back into government and they were quite shocked and surprised by the depth of feeling out there.
“Since that time we have been in constant dialogue with HMCTS about how they can improve. They tell us quite regularly that, according to all their statistics and customer feedback, their service has improved dramatically – but that’s not quite enough for us. We want to hold their feet fully to the fire, so we will be re-running that survey in the autumn.”
Ditchburn cites a pair of recent developments – all lease renewals moving from the County Court in central London to the First-tier Tribunal, and changes to the rules around disclosure in the Business and Property Courts – as two very major pieces of reform, adding: “We have been absolutely at the centre of those changes.”
Other recent successes for the law reform committee are the Boundary Disputes Protocol, prepared in conjunction with the PLA, which Ditchburn says is now “the ‘go to’ document for potential litigants that want to find a way through the mire of boundary disputes”.
In addition, perhaps the committee’s biggest victory came in response to the so-called “staircase tax” arising from the Supreme Court decision in Woolway (VO) v Mazars LLP [2015] UKSC 53; [2015] EGLR 56 – which was one of the PLA’s top 10 reform priorities previously outlined by Ditchburn.
The PLA’s top 10 reform priorities
- Landlord and Tenant (Covenants) Act 1995: The PLA has drafted an amendment to the 1995 Act to fix unintended consequences, such as those relating to guarantees. It has reached out to the British Property Federation, members of parliament and other organisations to move this up the agenda.
- The Landlord and Tenant Act 1954: Should be amended to reduce costs and simplify unnecessarily complicated procedures, such as that for “contracting out”. A pilot scheme is operating to transfer unopposed lease renewals for London properties to the First-tier Tribunal; the PLA sits on the user group.
- Landlord and Tenant Act 1987: It is proposed that the 1987 Act be abolished, including the potential criminalisation of granting commercial leases in mixed-use schemes. The PLA is calling for abolition to be part of the Law Commission’s upcoming consultation on leasehold enfranchisement.
- Commercial rent arrears recovery: CRAR needs reviewing, particularly its application being limited to pure rent and the seven-day enforcement notice. The PLA is expressing its views directly to the Ministry of Justice and seeking a further review to address industry concerns.
- Forfeiture: The doctrine of waiver of the right to forfeit, a trap for unwary landlords which limits the parties’ ability to resolve issues together, should be abolished.
- Business rates: Separate parts of a shared building should be treated as a single unit for business rates if they are contiguous and in the same occupation. The government has accepted the PLA’s proposed revisions to the Rating (Property in Common Occupation) and Council Tax (Empty Dwellings) Bill, abolishing “staircase tax”.
- Squatting: Should be made a criminal offence in commercial buildings, as it is for residential properties.
- Rights to light: There should be a time limit (say, up to one year) for claiming an injunction to protect rights to light once the development is built or notice given.
- Rentcharges: Payment of rentcharges should be made conditional on a demand being made giving prescribed information, including the statutory right to redeem.
- Break options: Courts should have a discretion to grant relief where one party is deprived of a valuable break right because of a trivial non-compliance with conditions.
Portraits by Louise Haywood-Schiefer
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