This is a brief blog to explain the background to the rented housing amendments I lodged at Stage 2 of the Coronavirus (Scotland) (No.2) Bill on Tuesday 19 May and those I intend to lodge at Stage 3 to be considered on Wednesday 20 May.

The Coronavirus (Scotland) (No.2) Bill is the second piece of emergency legislation to come before the Scottish Parliament. The first was the Coronavirus (Scotland) Act passed in a single day on 1 April.

Both pieces of legislation are designed to respond to the challenges posed by Covid-19 and typically make some administrative changes to how the courts and public bodies work as well as some more substantive policy changes in housing, licensing and justice.

Many people are facing new hardships due to job losses, declines in incomes and wider insecurities. These include renters who, like everyone else, are required to stay at home but whose security in their home its subject to laws on housing tenancies and the attitudes of landlords.

Responding to this, the first Act extended the period of notice required to be given by a landlord to a tenant if they wished to evict them. This was designed to ensure that renters could not be evicted during the pandemic. These reforms, however, did nothing to stop evictions being initiated during the so-called emergency period. I lodged a series of amendments to prohibit any evictions being sought during the crisis (not simply require longer notice periods). These amendments were rejected by Parliament.

Since 1 April it has become clear that longer notice periods will not be sufficient to deal with the hardship likely to be faced by many tenants – hardships that will extend beyond the emergency period when landlords will, if nothing changes, be within their rights to seek to evict tenants once again on the grounds of rent arrears that may have accrued as a result of hardship during the crisis.

So, when the new Coronavirus (Scotland) (No.2) Bill was introduced to Parliament on Monday 11 May I took the opportunity to propose amendments that would seek to deal with the post-covid period. I notified the Housing Minister on Tuesday 12 May of my intentions and invited him to discuss my proposed amendments with a view to potentially supporting them at Stage 2 (or stating why he could not).

I received no response.

Thus I lodged amendments 16-20 which did four main things.

Amendment 16 established a tenant Hardship Fund to respond to tenants in particularly acute distress.

Amendment 17 sought to freeze rents for two years.

Amendment 18 provided that in certain circumstances (to be seat out by Ministers) rent liability for some tenants facing particular hardship could be extinguished.

Amendments 19 and 20 were deigned to ensure that any rent areas accrued during the crisis would continue to be payable to landlords but could not be ground for eviction. This would prevent tenants losing their home but they would continue to be liable to pay any rent arrears accrued.

A number of parties including social housing interests wrote to the Committee with their concerns. I was not copied in to any of these representations and thus was unable to respond to them.

All the amendments were defeated by SNP and Conservative members of the Committee with the Liberal Democrat member supporting three of them and opposing two of them.

The arguments can be seen in the draft Official Report of the Meeting. All the housing amendments were dealt with at the beginning of the meeting.

Debate now moves onto Stage 3, the amendment deadline for which is 0930 on Wednesday 20 April. I am lodging a similar suite of amendments again but further amended to reflect objections made at Stage 2.

Amendment 16 will be taken forward by Pauline McNeill MSP (note that these numbers relate to the Stage 2 amendments, the amendment numbers for Stage 3 will be different)

Amendment 17 will now apply only to the private rented sector and the baseline date will be 1 April so as not to disadvantage landlords who have reduced rents during the crisis.

Amendment 18 now makes clear that writing off rents is only for tenants facing unusual or extreme hardship and it will be for Ministers to define this in regulations. It is NOT and NEVER was framed as a broad writing off of rent.

Amendments 19 and 20 now apply only to the private rented sector and make explicit that arrears can only be disregarded for the purpose of evictions (but remain payable) if the arrears are directly liked to coronavirus.

The redrafted amendments focus the intentions more explicitly, respond to objections and remain a modes but important suite of reforms designed to afford proportionate protections to tenants facing hardship because of factors beyond their control.

Scotland still lags behind many continental European countries in tenants rights and politicians continue to instinctively protect propertied interests rather than the interests of tenants. Since the propertied class have assets, they are relatively well off. For tenants, however, we are talking about their homes, the schools their children attend and the jobs they have. Tenants stand to possibly lose all of this and be kicked out of their homes. Landlords will still have a valuable asset.

It is time to stand up for the human right to a home.

I have just realised that I have never posted the good news about my defamation case here on my own website so here is it for the record.

I won!

Lord Clark ruled comprehensivelty in my favour in an Opinion published on 11 March 2020. This was just as coronavirus was taking over all of our lives and so I forgot completely to provide an update on my website although I did contact all the donors to my crowdfunder with the good news (though apologies I may have omitted to contact a number of people who donated by post).

The case (Wildcat Haven Enterprises CIC vs. Andy Wightman A111/17) was heard by Lord Clark at the Court of Session from 29 October 2019 – 8 November 2019. The Closed Record (the written argumets b y pursuer and defender) can be read here (2Mb pdf). Lord Clark rejected all of the pleas of the pursuer in what was a comprehensive victory for me. As a matter of law therefore neither of these two blogs are defamatory. The Pursuer issued a statement to the media on 11 March stating that “we will certainly appeal the decision”. However, the 28 day period in which to appeal has now expired and no appeal has been lodged. The original blogs are thus back online here and here.

What was revealed of this case in Lord Clark’s decision was a fraction of what was revealed in Court. What was revealed in Court was a fraction of the evidence assembled in the 1494 Productions (written documents lodged as evidence) lodged in the Court (59 by the Pursuer and 1435 by Defender). And what was revealed in the Productions was a fraction of what I have learned in the course of extensive preparatory research over the past 3 years about the activities of Highland Titles and Wildcat Haven Enterprises CIC. I will be publishing a detailed blog revealing what really went on over the past three years. Given the litigous nature of both parties, I will, of course, have these blogs legalled before publication.

 

 

colinbrown

Over the past few months I have been assisting a constituent to resist a Notice to Quit served on him to evict him from his home. I have set a Crowdfunder up to raise funds to pursue a legal case on human rights grounds to halt the eviction of 67 year-old Colin Brown from his home of 27 years in Leith, Edinburgh.

We are raising funds via Crowdjustice here https://www.crowdjustice.com/case/colinbrown/

Colin’s landlord is a company called Express Investment Company Ltd. The company owned 29 residential properties as at March 2018 and is disposing of all of them. In the case of eleven tenants who have secure tenancies, their homes have been sold with the sitting tenants remaining in their homes. Notices to Quit on the remaining properties have been served and the tenants have left. Colin Brown is the last remaining tenant. He is challenging his eviction in the First Tier Tribunal at a hearing on 17 January 2020.

This crowdfunder is not concerned with this tribunal hearing but with a wider planned challenge to the Housing (Scotland) Act 1988 on the grounds that in the circumstances of this case, the legislation violates Colin Brown’s human rights under the European Convention on Human Rights (Article 8 Right to Respect for Private and Family Life and Article 1 of Protocol 1 Protection of Property).

We believe that it may not be proportionate under Article 8 to evict a tenant who is 67 years old and has lived in his home for over 27 years. We believe that it may violate Colin’s rights under Article 1 of Protocol 1 as it may be disproportionate to remove his property rights (the 27 year tenancy) in favour of a corporate landlord who by definition cannot e.g. live in the property.

Why does this matter?
This case clearly matters for Colin Brown but it could also be of wider significance to the 15% of the Scottish population who live in the private rented sector. We believe that there are elements of private tenancy law that do not adequately uphold the human right to a home, to a private and family life and to possessions because it is too easy in too many cases to evict a tenant at short notice.

What do we propose to do?
We propose to obtain an Urgent Opinion by a leading Advocate as to the likely grounds and chances of success of this action. We have already secured pro bono advice from a leading academic authority in the field of ECHR.

How much we are raising and why?
We propose to raise £10,000 to secure this Opinion and to review the options open to use once it has been given. if we then decide to proceed to litigation, we will launch a new and separate crowdfunder.

This is about the worst time of year to ask anyone to donate money but Colin faces eviction and too many other private tenants live insecure lives. Thank you for whatever support you are able to provide.

Crowdfunder here https://www.crowdjustice.com/case/colinbrown/

30. October 2019 · Comments Off on Defamation 8 · Categories: Announcements, Defamation, Legal affairs

The case of Wildcat Haven Enterprises CIC vs Andy Wightman has been running in Court 6 at the Court of Session before Lord Clark, presiding.The case opened on Tuesday 29 October.

As a defender I am unable to comment on proceedings thus far. The BBC carried a brief report on the first day’s proceedings.

The Times has carried a report on Day 1 and on Day 2.

For those interested, I am now able to publish the Closed Record (the pleadings of pursuer and answers from defender) as it is now a court document and in the public domain.

Download a copy here (2Mb pdf)

I will likely be examined on Friday 1 November. The Court is open to the public. All welcome. The Court normally sits 1000 – 1600 with a break for lunch.

16. May 2019 · Comments Off on Defamation 7 Crowdfunder · Categories: Announcements, Defamation, Legal affairs

On 21 March 2017 I was served with a summons by Wildcat Haven Enterprises CIC. It is a defamation action in which the pursuer is claiming £750,000 damages (plus 8% annual interest). The action relates to two blogs I wrote In September 2015 and February 2016.

The case will be heard in the Court of Session over 8 days commencing 29 October 2019. The judicial costs (the time spent in court) have been estimated by a Judicial Accountant at £120,000. In addition, there are other legal costs incurred in preparing the case. These are estimated to be in the region of a further £60,000. I raised £54,000 of these in a previous crowdfunder. Further costs that I am meeting personally include research and travel costs associated with gathering evidence across the UK and in the Channel Islands.

I am thus launching what I hope will be a final crowdfunder to cover my judicial costs of £120,000.

Unlike other defamation actions where the content of the alleged defamatory material is well publicised, I need to conceal the blogs in question and cannot publish the detailed allegations until they are entered in court proceedings.

Please therefore note the following before deciding whether to donate.

1. Neither you nor I can know what the result of this case will be. I am confident that I have not defamed the pursuer but the Court has been asked to determine that. Before you donate therefore, be aware that you cannot form an informed view on the likelihood of success.

2. If I am successful in defending this case, I should be able to secure the recovery of most of my legal expenses. The pursuer has deposited £120,000 in the Court to cover this eventuality. In this event, I will reimburse all those who have contributed to my defence fund in proportion to what each party (including myself) has contributed. Thus, if I am successful, you can be assured that you will receive some of your donation back. I have appointed a Chartered Accountant to conduct an independent audit of my costs. An audited statement to 13 May 2018 is available here.

3. Funds raised in this crowdfunder shall be used solely for my legal expenses in the case. If I lose the case and damages are awarded to my pursuer, I shall be personally liable for those. If those damages are substantial, I may have no option but to declare myself bankrupt and be disqualified from serving as an MSP.

Finally, there are a lot of very deserving causes out there. I am launching this crowdfunder because some people have offered to help and for that I am very grateful. So please do consider carefully whether you wish to support this appeal or not.

Thank you to everyone who has provided generous support over the past two years.

If you are willing to donate, please proceed to the crowdfunder page.

02. July 2018 · Comments Off on Defamation 6 · Categories: Announcements, Defamation, Legal affairs

On 20 March 2017, I was served with a summons by Wildcat Haven Enterprises CIC claiming that I had defamed them and seeking damages of £750,000 (now £810,000 with 8% interest). The allegations relate to two blogs I published in September 2015 and February 2016. See previous blogs for further details. I deny all the allegations made against me.

I am extremely grateful to all those who donated to the crowdfunder I launched in April 2017. I have now had the income and expenditure audited and a Statement is available here (with signature redacted). Of a total of £59,153.71 raised, I incurred costs to 13 May 2018 of £30,871.62 leaving a current surplus of £28,282.09.

An 8 day trial has been scheduled for 15-18 October and 22-25 October 2019. Estimated costs to defend myself are in the region of £100,000 – £150,000 and I plan to launch a further crowdfunder in Spring 2019.

 

20. March 2018 · Comments Off on Defamation 5 · Categories: Announcements, Defamation, Legal affairs

One year ago, on 20 March 2017, I was served with a summons by Wildcat Haven Enterprises CIC claiming that I had defamed them and seeking damages of £750,000 (now £810,000 with 8% interest) . The allegations relate to two blogs I published in September 2015 and February 2016.

For the past year, the pursuer and myself have been adjusting the pleadings and the defence. This process is now complete and a date for a hearing will hopefully be agreed by the Court of Session soon though the date itself may well be a year or more away.

Wildcat Haven Enterprises CIC claims that statements that I made in the two blogs are defamatory. I do not accept that they are. I cannot divulge the nature of those statements or the specific complaint being made since, to do so, would be to risk repeating the alleged defamation. The contents of the 28 page closed record of pleadings and answers will be available once the proof is underway.

The estimated duration of the hearing is 8 days. I will need around £120,000 to defend myself and will be launching a second crowdfunder at the beginning of May.

I am very grateful indeed to all those who donated to the first crowdfunder launched on 19 April 2017. In early May I will publish an audit of the accounts.

Finally, the Scottish Law Commission has published a Report and Draft Bill on defamation law. Reform is urgently needed and the Scottish Government has the opportunity to commit to bring forward legislation in the Programme for Government to be announced in September 2018. If no such plans are announced, I will consider bringing forward the SLC’s draft bill as a proposed members bill.

Previous updates on the case can be found here.

 

03. May 2017 · Comments Off on Defamation 4 · Categories: Announcements, Defamation, Legal affairs

Thank you to all who have donated to my crowdfunder. I have just worked out how to download donor details and will be emailing you all directly within the next few days.

It is now evidence that these proceedings are highly likely to proceed to a proof before the Court of Session lasting around 8 days. Accordingly, the costs are now estimated in the region of £150,000. If I win, I can anticipate recouping around 60% of this (£90,000). If I lose (even on a very minor defamation), I will be due to pay all of these costs plus very possibly those of the pursuer. In that latter event I will certainly be bankrupt.

I am setting a stretch target of £50,000 for the remainder of this crowdfunder (until min-June) and will then probably launch another one later in 2017. My defences have to be lodged by Friday 5 May. I will publish further updates as maters proceed.

The crowdfunder together with an explanation of what the funds are to be sued for can be found at www.crowdfunder.co.uk/awdefamation

21. April 2017 · Comments Off on Defamation 3 · Categories: Announcements, Defamation, Legal affairs

Latest News.

At 5.30pm on Wednesday 19th April 2017 I launched a Crowdfunder campaign to raise an initial sum of £10,000 to help cover legal expenses to be incurred if my pursuer decides to call the defamation action outlined in its summons of 21 March. Within 24 hours, I had achieved my target and earlier this evening (20 April), the funds raised stood at over £23,000. I am extremely grateful to all those who have contributed.

Earlier today, I also received notice that the case had been called in the Court of Session. It is on the Court Rolls and court proceedings are now underway. I continue to deny the allegations and will be defending the action.

Previous posts on this topic can be read by clicking on the <Defamation> Category of this blog.

21. March 2017 · Comments Off on Defamation 2 · Categories: Announcements, Defamation, Legal affairs

Today I was served with a Summons from legal agents acting on behalf of Wildcat Haven Enterprises CIC to appear in the Court of Session seeking interdict on a charge of defamation and claiming £750,000 damages (plus 8% interest from date of citation).

In light of the fact that defending this action will be very expensive, I will be launching a crowd-funder shortly to seek assistance with meeting the likely costs.

I will be meeting with my legal advisers as soon as I can and will be making no further comment until then.

For legal reasons, no comments are being allowed.