Wednesday, 17 April 2019

Landlord Traps and Tenant Delights on Forfeiture: 2 New Cases

Landlord forfeits a long lease because of rent or service charge arrears and claims a possession order. The court makes the order but either fails to give the date by which possession must be granted and/or fails to give the tenant the option of paying the arrears and costs before the date expires and thereby earning relief from forfeiture. The order is deficient and an application for it to be set aside should succeed. The form of the order the court has to make is governed by section 13 of the County Courts Act 1984. The order cannot take effect in less than four weeks and it cannot be unconditional. That's the case of Golding v Martin [2019] EWCA Civ 446.

And here's another one a bit like the other one. Until any contractual right to a landlord to re-enter premises under a long lease has arisen the landlord cannot validly serve a notice under section 146 of the Law of Property Act 1925. In Toms v Rubbery [2019] EWCA Civ 128, the lease provided for a default notice to be served by the landlord and 14 days for the breach to be remedied. The landlord had pounced under section 146 before the expiration of a contractual notice. He pounced too soon and so his section 146 notice was invalid and the landlord was not entitled to possession on the strength of that notice.

These cases will not impact on the majority of cases which come before the courts where forfeiture is not involved. If you are a tenant and have been the recipient of an order which you may think is deficient, obtain professional advice before launching a court challenge to the order. 

Tuesday, 16 April 2019

MasterCard Claim by Walter Merricks: Appeal Result

For the best champagne, see your off-licence manager.

Walter Merricks has won  - which could mean you have won - and MasterCard has lost. The Court of Appeal today upheld the appeal against the refusal by the Competition Appeal Tribunal to allow a collective claim to be brought against MasterCard. It recognised that the Tribunal's decision would have frustrated the will of Parliament that there should be and effective route for consumers to be compensated when businesses broke competition law. 

The case now goes back to the Tribunal which will allow the claim to proceed.  We haven't arrived at an award of many millions yet - actually, £14n is being sought -  but we could be on our way.

Oh, just one thing. MasterCard's lawyers asked the Court of Appeal for permission to appeal to the Supreme Court but permission was refused. MasterCard can still seek permission from the Supreme Court and any request for permission is likely to be determined within the next few months. I'll keep you posted.

Wednesday, 10 April 2019

New Divorce Laws Explained: Pounce or Wait?

The government has just announced its divorce law reforms. If you are hoping to take advantage of them, you will need to be patient. Parliamentary time has to be found for the bill when it is ready. The bill is likely to sail through Parliament (yes, I know they said that about Brexit) but could not be implemented until procedural rules had been drawn up which will be complicated. It could be two years (or more or less!) before the changes are in force. So, don't book the priest (incidentally, the Fleabag cleric is not available) for your remarriage quite yet. Of course, you could always take advantage of the present laws if you can establish one of the five factors which would lead to your freedom - your spouse's adultery, unreasonable behaviour, or desertion which has lasted for at least two years, or a period of separation which has lasted for at least two years if your spouse agrees to  divorce or at least five years if your spouse does not agree or you cannot find them. Divorce on the basis of five years apart will hardly ever be denied whatever the stance of the other party.

Over to the reforms, then. No divorce or civil partnership dissolution until at least one year has elapsed since the ceremony. Then you will be able to go for freedom by lodging a statement with the court confirming that the relationship has irretrievably broken down. You won't have to rely on any of the existing grounds. Just irretrievable breakdown. The statement can come in from you alone or jointly from you and your spouse. Once at least 20 weeks have elapsed from lodging the statement, you will be able to apply for the first decree (it's called the decree nisi in divorce now but its name will change) and then, after at least a further six weeks, you will be able to apply for the second and final decree (it's called the decree absolute now but, again, its name will change). Don't imagine that it will all be over and done with at the end of the 26 weeks. These will be minimum periods and documentation will have to be processed by the court. Nothing will be automatic. It will be down to you to ask for each of those two decrees.

The court will have power to expedite the second decree. It may also be given power to expedite the first decree. It could be given the power to hold up the second decree where financial matters have not yet been resolved.

Cases will almost invariably be dealt with 'on paper' without any personal attendance at court except in respect of any financial applications or child welfare disputes. The present scheme for online divorce etc which is not yet in full flow will have to be adapted to cater for the new procedure. Don't hold your breath!

The nullity law is untouched. It will continue to be possible to ask for a separation decree instead of a divorce  - even within the first year -but, in that event, it would not be necessary to show that the relationship had irretrievably broken down. The court can make lots of financial orders where just separation has been granted.

You will find a great deal of material on the present divorce and other matrimonial law and on how to bring and counter financial applications in my book Breaking Law. Have a read but I'm afraid you will have to buy a copy. Well, not too afraid!

Happy times.

Wednesday, 27 March 2019

Minimum Wage Up

From next Monday 01 April 2019, the UK national living or minimum wage increases, so put on your helmet for cranial protection and tell the boss. Blame it on the National Minimum Wage (Amendment) Regulations 2019 SI/2019/603.

These are the hourly rises -
national living wage for those aged 25 and over: from £7.83 to £8.21
adult rate for those over 21 but under 25: from £7.38 to £7.70
development rate for those 18 or over but under 21: £5.90 to £6.15
youth rate for 16 and 17 year olds: from £4.20 to £4.35 
apprentice rate for those under 19 or in the first year of apprenticeship: from £3.70 to £3.90

The maximum daily amount for living accommodation which is allowed to count towards pay for national minimum wage or national living wage purposes increases from £7.00 to £7.55. 

Tuesday, 12 March 2019

Estate Agents' Commission Slashed by One-Third. It could be you!

In a poll I conducted in a dream as to who the public would least like to be trapped in a lift with, an estate agent came top. This is a shame because some estate agents are almost human and help old ladies across the road without asking for any commission at all. 

In a second poll I conducted in a dream the following evening, I asked whether the public would avoid paying an estate agent commission for negotiating the sale of their property if they possibly could, and 123% answered in the affirmative. Which takes me to the Estate Agents Act 1979. What the Act says along with regulations made under it - the Estate Agents (Provision of Information) Regulations 1991 (SI 1991/859) - is that if you go to an agent with a view to possibly instructing them to offer your property for sale then they must provide you with various prescribed information in writing  which includes the amount of their commission  and when you would become liable to pay it. The information must be given at the time when you and the estate agent commence communication or as soon as reasonably practicable afterwards. But, in any event, the information must be given before you sign up with the agent and become committed to any liability to them.

If the agent fails to give you the necessary written information at all or gives it late then   they cannot recover one new pence of commission from you unless the court gives them permission to do so. The court must dismiss their application for this permission if it considers this is just taking into account the prejudice caused to you by their breach and the degree of culpability for their failure. Even if the court gives the agent permission to sue you it can reduce  the commission or say no commission at all, so as to compensate you for any prejudice you have suffered. If, for example, the agent was acting dishonestly, the delay in giving you the written information was considerable or you reasonably thought the commission rate was less than it turned out to be, then there would be a chance that the agent would end up with no commission or a cut in their commission.

In  a case just before the Supreme Court - Wells v Devani [2019] UKSC 4 - the client and estate agent had agreed over the phone that the client's seven flats should be marketed by the agent and just one week later the agent secured an offer of £2.1 m. The sale went ahead. But it was not until the offer had been accepted that the agent sent the client the necessary information so one week late. The Supreme Court upheld rulings that because of the failure to comply with the law, the agent's commission should be reduced by one-third (£32,900 inclusive of VAT) having regard to the prejudice suffered by the client. The Supreme Court made it clear that there could be cases where the degree of the agent's culpability was so great that the agent would get nothing even if the client had suffered no prejudice. The importance of the 1979 Act should not be under-rated.

Time for some more dreaming by me. I'm off to bed with my copy of Breaking Law. Got yours?

Sunday, 10 March 2019

New Civil Procedural Rules: MORE!

I've provided you with the first dose of the new civil procedural rules coming into force next month. Please digest with a glass of cold water but not on an empty stomach. Here's some more to be taken with your evening meal.

Summary assessment of costs This is only likely to interest you if you are a lawyer,  professional litigant. or slightly eccentric. On 01 April 2019 a pilot scheme for the summary assessment of costs is introduced. It doesn't matter when the claim was started. If the assessment is to take place on or after that date then the party who will be asking for costs can use a new form instead of the current N260 and can utilise an electronic spreadsheet. For an interim application, use new form N260A: for an assessment which is going up to and including trial, use new form N260B. You''ll find the new forms with CPR update 104. With that update, you will also find a new budget discussion report form for multi-track cases which must be used as from 25 April 2019.

What did the judge say? The court hearing will have been recorded and you can request a transcript of what was said. If the judge raised their eyebrows during the hearing or your jaw dropped a few feet when you heard the judge's decision then that, of course, will not show up on the transcript! The cost of the transcript has to be borne by whoever asked for it. It can be high. The longer the hearing, the longer the transcript and the costlier it will be. If you want the transcript for an appeal then the likelihood is that only the judgment - the judge's announcement of their decision and why they have reached it - will be needed. However, judgments can be lengthy and, for a variety of reasons, there can be delays in the transcript being produced for you. This can hold up the appeal. A new provision in the procedural rules which will come into force on 01 April 2019 encourages the judge to assist a party, and particularly a litigant in person, to give directions for the compilation and sharing of any note or other informal record of the hearing which has been made by another party or their lawyer or, indeed, by the judge. This is to be welcomed and should accelerate the determination of any appeal.

Tuesday, 5 March 2019

Waitrose Car Park Lost Ticket Charge: £25 Avoided!

Oh dear. I've had another spot of bother with the Waitrose, Richmond-Upon-Thames car park. But not the lift, the ticket machine or dangling pieces of metal. Something completely different. During my short time in the store, I discovered I had lost my car park ticket. Idiot. They wanted £25 out of me for the privilege of letting me drive out and settled for £15. This is what then happened.
Me to Waitrose on 01 February 2019 by -mail
Dear Team
1 On 25 January 2019 I was compelled to pay £15 to Waitrose, Richmond because I could not produce my car park ticket which I had lost in store. This was a reduction from the charge of £25 which, for the purposes of this complaint, I will treat as chargeable under the conditions of parking (but see below).
2 I entered the car park at 3.48 pm on 25 January 2019 having left a venue in Kingston-upon-Thames at approx. 3.30pm.
3 I had arranged to meet my partner inside Waitrose and to text her on my arrival at Waitrose. I duly texted her at 3.48 pm to state ‘I am at Waitrose’. I can produce the original text. She met me in Waitrose shortly thereafter.
4 Prior to 3.48 pm I had not been in Richmond and, in particular, in Waitrose, Richmond previously that day.
 5 We both shopped in Waitrose. At 4.30pm I paid £44.05 for goods and was issued with a receipt which I hold ref 000000055450 AID A0000000041010 App Seq 10. My partner made purchases for circa £25 immediately before me and at the same till.
 6 Upon realising that I could not locate my car park ticket I went straight to the customer service counter where the duty manager known to me only as ...... was called. I summarised my position and asked to be allowed to exit without making the £25 payment. I relied on the short time I had been in the car park; the fact that I was a long-standing Waitrose customer making substantial purchases on a weekly basis and that I had arrived in the car park directly from ‘work’ at Kingston at about 4pm. He indicated a willingness to reduce the charge to £15 after I insisted that he had a discretion in the matter bur refused to waive it completely or make a further reduction. 
7 I accept that Waitrose needs to be seen to take action in some cases to impose a reasonable lost ticket charge so that the public generally is not encouraged to falsely claim that their ticket has been lost and thereby potentially deprive legitimate and paying customers of the use of the car park and/or suffer lost revenue but, in my case, I submit that the charge in fact levied should not have been levied and was unfair because-
(A) I am and for many years have been a Partnership card holder my number being ............
(b) I was and for many years – not less than 40- had been a regular Waitrose and John Lewis customer (as had been my partner) and I observe, for example, that for the period 15 December 2018 to 13 January 2019 (and ignoring cash transactions) I entered into twelve separate credit card transactions on separate dates with Waitrose according to my Partnership card statement. On 30 January 2019 I received a set of discount vouchers from you which were described as my ‘exclusive reward for our most loyal customers’.
3 I have always previously paid the Waitrose car park charge when chargeable and never previously lost my ticket.
4 I had been in the car park on 25 January 2019 for approximately 30minutes as I have been able to establish.
5 It was or should have been evident to the duty manager that I was a bona fide user of the car park and had quite genuinely lost my ticket and credit should have been given to me for the loyalty I have shown to Waitrose and the value of the transaction which I had entered into that afternoon (ignoring the separate transaction of my partner). I produced my till receipt for inspection.  I invited the duty manager to view CCTV footage to verify the time of my arrival although the invitation was not taken up. 

Quite separately and apart from my submission that, in the particular circumstances, it was unfair for Waitrose to seek to rely on it strict ticket conditions, I submit that the lost ticket condition is extortionate and\or extravagant and should not be enforced and should be revised. I say this because the condition fails to reflect the maximum period for which a particular vehicle could in fact have been present in the car park. It requires payment of the same amount whether the lost ticket holder’s vehicle had been parked for 05 minutes (for example, where the car park had opened at 8.00 am and they have reported a lost ticket at 08.05 am) or for the day’s entire car park opening hours. 
If my request for a £15 refund is not met then I reserve my right to bring proceedings for the recovery of the at sum and a declaration that the condition is unlawful.
Yours sincerely
Stephen Gold

Me to Waitrose on 05 February 2019 by e-mail


Me to Waitrose on 11 February 2019 by e-mail

Me To Waitrose on 16 February 2019 by e-mail


Me To Waitrose on   February 2019 by post
Chief Executive

Doncastle Road
RG12 8YA
Dear Sir
I have made four attempts at procuring some response from Waitrose on line to my complaint. I enclose downloads of my electronic messages to you. None of them has met with an acknowledgment, let alone a meaningful response. Do you find this acceptable?
Yours faithfully
Stephen Gold

Waitrose to me on 26 February 2019 by e-mail
Thanks for your letter Mr Gold addressed to our Managing Director, Rob Collins. He’s asked me to respond on his behalf. 
I am sorry you've had to chase this. After searching our system I was unable to find the emails you kindly copied in your letter. I am sorry but it appears we didn't receive these. I can see our Customer Care team did respond to your initial email on 19th January 2019, did you receive this?
I was sorry to read of your experience at our Richmond branch with your car park ticket. I would really like to give you a call to discuss this further. Please can you let me know a contact number and a convenient time to call? Alternatively please call me on tel: .... I am working until 2:30 today and back in the office tomorrow from 9:30 
Kind regards
Case Manager, Executive Office

Me to Waitrose on 26 February 2019 by e-mail
Dear Harriet 
Thank you for your message. Each of my emails was duly transmitted and never returned - and so deemed received - and not one was acknowledged. It follows that I had no response to my initial email. I find it curious that if it was acknowledged then it has not been followed up after this period of time. I fancy that something odd is going on - some form of ‘shredding’ perhaps - which you ought to be investigating.
I am heavily committed at work for the usual business hours for the rest of this week and next week is also difficult for me to call. In the circumstances, I shall be obliged if you will please write to me.
Kind regards
Stephen Gold

Waitrose to me on 27 February 2019 by e-mail
Good morning Mr Gold and thank you for your reply. I understand you are busy, I am more than happy to communicate via email.
I am sorry to read of your experience at our Richmond branch when you lost your car park ticket and how this was handled. I will pass on your feedback to the branch management team, who will review this with the manager on duty.

I would like to arrange for a £25 gift card to be sent to you as an apology. If you would accept this please can you reply confirming your full address so I can get this arranged.
Kind regards
Case Manager, Executive Office

Me to Waitrose on 27 February 2019 by e-mail
Dear Harriet
Thank you and noted. I would accept a £25 gift card as an apology and it can be sent to me at ....... I fancy it will be redeemed at another branch!
Kind regards
Stephen Gold

Waitrose to me on 28 February 2019 by e-mail
Thanks for your reply Mr Gold. I've arranged for a gift card to be sent. You should receive this in the next few days.

Sorry again for your experience, if I can help any further please let me know.
Kind regards
Case Manager, Executive Office


I am now holding the gift card in my grubby hands. Harriet was a sweetie, wasn't she? Different Waitrose stores seem to have different car parking rules. But no rule should impose a lost ticket or overstay charge which is exorbitant and management should know when to exercise the discretion to let you off with the verbal equivalent of a clip round the ear. After all, they are running a business and not a penal establishment. In some situations, the charge might just be legally challengeable (see my book Breaking Law on small print etc). May your Waitrose car park tickets be with you.