Monday, 2 December 2019

Bonanza for Council Tenants: Refunds for Water and Sewerage Overcharging


The result of a High Court test case decided last week involving a Kingston-upon-Thames council tenant (Royal Borough of Kingston-upon-Thames v Moss [2019] EWHC 3261 (Ch))
is likely to mean money back for hundreds of thousands of local and housing authority tenants who have been supplied with unmetered water and sewerage services as part of their rent.

In the Kingston case, for over 14 years up to August 2017, an agreement between the Council and Thames Water provided for the council to pay for supplies and to enjoy a voids allowance (to reflect times when properties were vacant) of 3.5% and commission of 9.3% less the voids allowance. The commission was intended to cover the administrative costs of collection and any losses through non-recovery. What were added to tenants’ rent were the gross charges and the reductions were not passed on.  

The High Court judge ruled that as the council was bound by the Water Resale Orders 2001 and 2006, it had charged in excess of the permitted sums and there was a statutory right of tenant recovery. The tenant also had a contractual claim on the basis of a varied standard agreement which obliged him to merely pay ‘the exact amount payable for the property to the water authority.’  

There may be a strong argument that a claim for overcharged services can only go back for six years immediately before the start of civil proceedings for the return of money although the council did not take this point in last week's case.

If Kingston council decides to try and appeal the decision, I will let you know. By the way, the decision follows a similar case against Southwark London Borough Council in 2016 which has so far cost the council £28.6m in overcharges it has repaid to tenants.

STOP PRESS
The council has been refused permission to appeal by the High Court judge. It can now go to the Court of Appeal and seek permission there. It has been granted an extension of time for seeking the Court of Appeal's permission. I will keep you posted as to whether it will follow that through and, if it does, as to the outcome.

Thursday, 28 November 2019

Black Friday and Xmas Shopping Legal Tips

Here goes: pin back your lugholes for how to avoid tears according to the law of England and Wales. And for much more info and template letters and forms, buy my book Breaking Law. No, the pages will not fall out. 
  • If your purchase is defective you are at your legally strongest in rejecting within 30 days. You might like longer just in case the defects fail to show up within 30 days. The seller can agree to extend. Get them to write on the invoice/till receipt Your right to short term rejection is extended to x days. Say you will only buy if they do this.
  • If your purchase costs more than £100, buy using a credit card so that you can claim against the credit card company as an alternative to the trader where the trader has gone out of business or is difficult. This may not be legally available where an intermediary has processed the payment. That will be the case with a Pay Pal purchase, for example. In order to get this protection, it is not necessary for the entire purchase price to go on the card. £5 on the card and £100 in cash would be good enough to make the credit card company have to stump up 100% compensation. That compensation can include consequential losses on top of a refund of the purchase price.
  • If you bought using a debit card, then the card issuer may refund the purchase price where the goods are not up to legal standard. But you won't get consequential losses as with a plus £100 credit card purchase.
  • Changing you mind isn't a valid reason for getting the price back so long as the goods were up to legal standard. But the seller may run a returns policy. If so, you must comply with its conditions. Where there had to be a return within 14 days, you can't complain on being told you are too late because you tried to return after 14 days. Where you had to produce a receipt, you can't complain on being told 'no receipt, no return.' However, if these conditions weren't brought to your attention before you bought - on a conspicuous notice or by an assistant - you would not be bound by them. If they were brought to your attention on the till receipt and you weren't aware of them previously, that would be too late to enable the seller to rely on them.
  • If the goods were not up to legal standard, your inability to produce a receipt should not be fatal to securing a refund and any compensation to which you are entitled. The law dos not provide Thou shalt wave a receipt at the visage of the vendor. It is reasonable that the seller should be satisfied that you purchased the item from them but if no receipt, no credit card statement and no  other helpful document, your word should be good enough. Provided you are not an inveterate liar, it can be good enough for a judge in the county court. It has been good enough for me.
  • Where it is the person to whom you gifted the item who is complaining it is not up to legal standard, then the seller is entitled to say Push off. It wasn't you who made the contract to buy. There are two ways to overcome this in the case of a gift purchase. Get the seller to agree that if you buy they will write on the invoice/till receipt For Nellie and Macfarlane who can enforce all legal rights against us. If this wasn't done, write on the gift card I hereby assign all rights and remedies under the contract with x for the purchase of this gift to you Nellie Macfarlane and Nellie can notify the seller you have done this.
  • Rights under the Consumer Rights Act 2015 are given to individual consumers and not someone buying for a business. But if the dominant purpose of the purchase is private, the Act may still apply as it would if you bought a lap top for say 75% personal use and 25% business use.
  • Online you should generally have the right to cancel within 14 days of delivery just because you changed your mind.
  • The Consumer Rights Act 2015 applies to sale and other discounted purchases. You cannot complain about a defect which was brought it your attention before purchase. And if you examined before you purchased, you cannot complain about a defect which that should have revealed. The price you paid may be relevant to whether the item is of a legally satisfactory standard but even with a 95% discount, it must still work!
Good luck!

Sunday, 24 November 2019

Selfish and Disgusting Sneezers: Sue them

Twice this afternoon. Once in Waterstones and once in WH Smith. Within ten yards of me at each venue, a customer emitted the most enormous sneeze with gay abandon. No attempt to cover mouth, nostrils or any other orifice. No handkerchief. 'Look at me, I can sneeze loud, high and far so that I can infect you all.' I aired my views as volubly as I could without causing a public disturbance or a punch on my nose and do please remember that I wear specs and am of a nervous disposition. The circumstances were not quite good enough for a civil claim. But without apology, I again present my annual rant just in case you feel as strongly as me and fancy a trip to court. Here goes. 

An assault and battery are known to the civil law as a trespass to the person. If an unprotected sneeze is directed into your face then I regard that as such a trespass. It's probably also the tort of negligence. It could be either or both when, though not directly aimed at you, the sneezer is aware of your presence and the sneeze is emitted so close to you that they should have foreseen that you might catch something from them.

Proving that it was a result of the sneeze that you were struck down could be the obstacle to a successful civil claim for damages. You would have to prove that it was more probable than not that the sneeze was the cause of your illness. Physical closeness, the absence of prior symptoms, the velocity of the sneeze and the stage at which the symptoms began to manifest themselves will be among the major factors for consideration. The further away from you was the sneezer, the weaker your case.

A good sneeze can certainly travel at 60 to 80 miles per hour for up to 20 metres but research published in 2015 suggested that droplets from sneezes - and coughs - may travel 200 times further than had been thought. The incubation period for whatever is to follow the sneeze is around 24 to 48 hours.

Of course, you cannot make a civil claim unless you know the identity of the sneezer. Don't attempt a private arrest. For more on overcoming this obstacle and draft particulars of claim for a sneezing claim for damages, see my book Breaking Law. No warranty is given that you will succeed but let's hope someone does..... soon.'


I feel better now. Sorry.


Tuesday, 16 January 2018

Tuesday, 12 November 2019

Civil Partnerships for Opposite- Sex Couples Has Arrived

Same-sex couples can do it. Now opposite-sex couples are about to be able to do it in England and Wales. That's enter into a civil partnership instead of a marriage. There are over 3 million opposite-sex couples here who chose not to marry because they have a conscientious objection to the idea or for other personal reasons. They support a million children but do not have the security or legal protection that married couples or civil partners enjoy. It is all about to change.

The Civil Partnership (Opposite-Sex Couples) Regulations 2019 (SI 2019/1458) come into force on 02 December 2019 which will enable opposite-sex couples who wish to enter into a  civil partnership to give the required 28 days' notice and hold their ceremony before the end of this year. It could be you!

The right of same-sex civil partners to convert to a marriage, without having to first dissolve their partnership, is preserved. A similar right of opposite-sex partners to convert to marriage will not be available, at least for the time being, but will be considered.  

Friday, 1 November 2019

General Election: Keeping out the Canvassers

They tell me there's a General Election coming up. If you are short of company then you may welcome doorstep chat with a canvasser. You can just pretend you will be voting for their party. Or you may find the door knocks and the election literature to be a massive pain in the neck and just make do with being accosted outside Marks & Spencer. 

For those anxious to limit exposure to electioneering, I have devised a notice which you could display on your gatepost or in some other prominent position. Should the notice be ignored, the law would entitle you to use reasonable force to eject the trespasser once you have demanded they leave. But please go easy and do your best to avoid a confrontation. And don't mention my name.

Happy Election

ANY PROSPECTIVE PARLIAMENTARY CANDIDATE OR THEIR CAMPAIGNER OR OTHER AGENT IS UNWELCOME HERE AND SHOULD NOT ENTER OR ATTEMPT TO ENTER THIS PROPERTY OR REMAIN ON IT OR DELIVER OR ATTEMPT TO DELIVER ANY ELECTION LITERATURE TO IT. THIS DOES NOT APPLY TO POSTAL WORKERS. FAILURE TO COMPLY WITH THIS REQUIREMENT WILL MAKE YOU A TRESPASSER AND RENDER YOU LIABLE TO BE REMOVED FROM THE PROPERTY AND TO DAMAGES FOR TRESPASS AND/OR NUISANCE

Personal Injury Claim? Don't settle yet!


Guidelines are periodically published for judges and anyone else interested on the levels of compensation which should be awarded for a multitude of personal injuries from loss of limbs to a whiplash. The levels go up with each set of guidelines and judges tend to reflect the latest figures in what they decide to award. It follows that insurance companies and others who have to pay out the compensation will reflect the guidelines in the amount they offer  as they know what the claimant will receive if there is no settlement and a judge in court decides. Here's a bit more to how it works at http://www.breakinglaw.co.uk/search/label/compensation%20for%20personal%20injury

And so, if you are on the verge of settling a claim or are a lawyer advising on a settlement, ensure that account is taken of the very very latest guidelines that have just been published in the 15th edition of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases.

Happy Settlements.

Tuesday, 29 October 2019

Waitrose Lift Saga Earns Free Choc Cake

Maybe Waitrose have had their lift recorded announcement and other problems at their Richmond, Surrey store  (see http://www.breakinglaw.co.uk/search/label/Waitrose). But how can you fail to love them after their response to my Birthday greetings?!

From: STEPHEN GOLD 
Sent: 26/10/2019 12:21
Subject:  Car Park at Richmond-upon-Thames Store

Hello
I would like to both congratulate and apologise to you. As to congratulations, this is on the occasion of the first anniversary of the perverted automated announcement in your centre lift from ground floor to car park that the lift is descending rather than ascending and thereby sending its passengers into a state of intense confusion. As to the apology, this is on account of the lateness in conveying my congratulations which has been due to pressure of shopping.
I have previously drawn your attention to the lift problem which you had stated was being fixed. I am wondering whether the engineer has been caught in dreadful traffic?
May I offer a solution? I would be prepared to take up an honorary position in the lift in question and personally announce its direction of travel at appropriate intervals. All I would ask is that you made available to me a slice of your exquisite chocolate cake from the new Waitrose 1 range during tea breaks, assuming, of course, that I would be entitled to such breaks. I could arrange for my cat to take over duties during them.
I look forward to hearing from you.  
Yours sincerely
Stephen Gold
[Sitting down and not up]

From: Waitrose Customer Service
Sent: 28/10/19 19:27
To: STEPHEN GOLD 
Thank you for the offer of manning the lifts, however I am going to have to decline your help as I have now spoken to Jasmine, one of the duty managers in store this evening. She has advised that she will bring this to the attention of the maintenance team to get this fixed as quickly as possible, as we do not want to continue to confuse our customers anymore..


Apologies that this had not been rectified when you first queried this. I hope you will accept a small gift card so you can purchase that lovely chocolate cake you so desire. Please reply with your full home address and I will get this arranged for you.   

If you'd like to comment on the service I've given you, click the link below to take part in our quick survey - as a thank you, we’ll also enter you into our monthly prize draw where you could win Waitrose & Partners gift vouchers.

[link provided]

Kind regards 

Kristina  
Waitrose & Partners Customer Care
Case Reference: 06915209

I have accepted their offer. I'll be back when I have finished the cake.