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Painsmith Solicitors Limited trading as Painsmith Solicitors, Director: Marveen Smith. Registered No. 07617210.
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David Whitney is a solicitor and mediator. Prior to joining PainSmith five years ago he was a Partner in a West London practice. He has practised in the field of landlord and tenant law for about 20 years and has over the last 15 years developed a specialism in long residential leasehold work. His work encompasses dealing with all aspects of landlord and tenant including dilapidations claims, repossessions, enfranchisement, lease extensions, RTM applications and service charge disputes to name a few. In the past 12 months alone David has assisted over 200 hundred flat owners to either purchase their freehold or extend their lease. David understands the, often, competing interests of differing parties and prides himself on giving clients pragmatic and commercial advice. David also sits as a fee-paid Judge of the First Tier Tribunal (Property Chamber) on the Southern Region and as a member of its mediation panel.
Laura graduated from the University of Portsmouth in 2013 with a degree in Law with Business. This year, Laura also completed the Legal Practice Course.
Prior to joining PainSmith Solicitors, Laura worked for a local council. She has the experience and knowledge to confidently handle her own caseload across a range of property matters and uses her understanding of business to ensure that she produces practical commercial solutions to client’s problems.
Emma qualified as a solicitor in 2010 after completing her academic training at Bournemouth University and the University of Law, Guildford.
After undertaking her training contract at a large firm on the south coast she began her career with the same firm before accepting a position with PainSmith Solicitors in November 2012.
Emma specialises in all aspects of property litigation and can assist in resolving most disputes, regularly acting for landlords and land owners in connection with dilapidations disputes, forfeiture and possession claims, land registration disputes, building and boundary disputes, and recovery of arrears and other debts.
Emma is also able to draft up to date tenancy documentation, being fully conversant with all relevant requirements and guidance that applies to this heavily regulated and changing area. She has been praised for her ability to quickly understand her clients’ objectives and for offering commercial, pragmatic advice in a straightforward manner.
Richard came to PainSmith in August 2011 as a Paralegal after graduating with a degree in law from the University of Sheffield. Whilst working for PainSmith he completed the Legal Practice Course at weekends completed a training contract at the firm and has been taken on by the firm as a fully qualified Solicitor. After receiving considerable training provided by PainSmith, Richard joined the legal helpline and has been one of the advisers on the helpline for over four years.
He has over five years of experience in Landlord and Tenant law and his normal work load ranges from case handling of possession matters, deposit disputes, drafting of tenancy agreements, advising on HMO properties and debt and disrepair claims. He is experienced in lengthy and complex litigation and settlement negotiations.
David Whitney is a solicitor and mediator. Prior to joining PainSmith five years ago he was a Partner in a West London practice. He has practised in the field of landlord and tenant law for about 20 years and has over the last 15 years developed a specialism in long residential leasehold work. His work encompasses dealing with all aspects of landlord and tenant including dilapidations claims, repossessions, enfranchisement, lease extensions, RTM applications and service charge disputes to name a few. In the past 12 months alone David has assisted over 200 hundred flat owners to either purchase their freehold or extend their lease. David understands the, often, competing interests of differing parties and prides himself on giving clients pragmatic and commercial advice. David also sits as a fee-paid Judge of the First Tier Tribunal (Property Chamber) on the Southern Region and as a member of its mediation panel.
Marveen Smith was one of the founders of PainSmith Solicitors in 2001 and has been the only Principal of PainSmith Solicitors a niche firm who are specialists in property law since 2006. Marveen has a background in accountancy and tax; forging a second career in law by qualifying as a Solicitor before starting her own practice. As well as working in her legal practice daily Marveen is one of the trainers for ARLA and other organisations presenting legal courses throughout the country; giving presentations at regional meetings for ARLA; and at seminars for landlords. Marveen has made regular appearances on Money Box for Radio 4 and Watchdog where she endeavoured to balance the one sided view of letting agents that can be presented by the media, as well as disseminating information to enable landlords to act in a more professional capacity. Marveen was the first person to establish a legal helpline for landlords and agents; and to offer both standard and bespoke documents designed specifically for the lettings industry. Today PainSmith offers a wide choice of legal documents to satisfy the requirements of both relocation companies, letting agents and landlords.
Common sense prevailing in contracts
The Supreme Court has confirmed in Rainy Sky SA and others v Kookmin Bank that they are prepared to ignore large parts of the original contract wording that can sometimes seem ambiguous and inconsistent in order to take a more commercial approach and apply common sense. This case demonstrates the continuous move away from a strict and literal approach to contractual constructions by applying common sense in order to eliminate the ambiguous wording of contracts which can cause disagreements amongst the parties with the wording often having more than one meaning.
In Rainy Sky SA and others v Kookmin Bank the Supreme Court unanimously overturned the previous decision of the Court of Appeal. The facts of the case are complicated because it’s a Maritime case and outside the remit of this blog. Therefore, briefly, the drafting of the guarantee agreement was the main cause of disagreement between the parties, as the drafting did not match that as stated in the shipbuilding contracts. Where the shipbuilding contracts had stated that should one party enter into insolvency then the buyers would have a right to rescind the contract and therefore obtain a refund for payments made pursuant to the contract, the guarantee agreement did not. Paragraph 2 of the guarantee stated that the buyers would be entitled to a refund if they exercised their right to “termination, cancellation or recission” their contracts and paragraph 3 provided the guarantee obligation that the defendant would pay the buyers “all such sums due to you under the contract”. But when one party began having financial difficulties and entered into a form of insolvency the defendant refused to give them a refund on the guarantee paid pursuant to the contract because the defendant argued that the insolvency was not “termination, cancellation or rescission”. The claimants argued that this literal interpretation made no business sense and that there was no good reason why insolvency should be excluded.
The courts decided to approach the contractual wording with what a reasonable person would have understood the parties to have meant, keeping in line with the consistency of the commercial purpose of the bonds. This approach to construction has been used in previous case law, notably Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd where it was held that the ultimate aim of interpreting a provision in a contract is to determine what the parties meant by the language used, which involves ascertaining what a reasonable person would have understood the parties to have meant. However in Rainy Sky SA and others v Kookmin Bank [2001] UKSC 50 they were faced with the question of what happens if the reasonable person is capable of reaching two different interpretations from the same words? The court found it necessary to use the construction in a manner consistent with business common sense, as a language capable of producing an absurd or irrational result was held not to prevail over the commercial purpose of the agreement. The court therefore held that insolvency would be included in the list of grounds on which the parties could rely on in order to terminate the agreement and have the bond returned.
So why did the court allow common sense to prevail and what does it mean for the future? Language can be deemed as flexible in the sense that what might seem reasonable to one, isn’t deemed reasonable to the other. Thus meaning that although the presumption of a reasonable person can be used in most situations, it cannot be used in every situation that arises.
What does this mean to landlords and letting agents?
This case means that contracts, and particularly guarantee agreements, will be looked at by the Courts with an eye to giving them the force that the parties reasonably intended. They will not normally allow a guarantor to escape their obligations by reading a piece of ambiguous wording in an overly restrictive manner.
However, this should not be seen as a licence not to take care with documents. No landlord or agent would wish to undergo the expense of the multiple appeals that this case required.