Saturday, 23 December 2017

Hurry. Planning fees going up.

Here's my Christmas present to you. And you can't return it if you think it stinks. It's news that may save you money.

If you are about to apply for planning permission, make the application before 18 January 2018. The fees payable to local planning authorities for planning applications, deemed applications, requests and site visits are increasing by around 20 per cent on that date. A fee will also be chargeable for permission in principle which is a new route to planning permission.

So pull out your planning finger and at the same time you can start a war with your neighbours who you can bet will object - even if you did send them a Christmas card.

Sunday, 17 December 2017

Essential Laws for the Festive Season. Ignore At Your Peril!

Extend the 30 Days If the goods you purchase as a consumer are below legal standard, you are at your legal strongest by rejecting them within 30 days of delivery (less if they are perishable). It's known by the law and lawyers (whether or not they are wearing their wigs) as 'short-term' rejection. But the trader who is selling them can agree to extend the 30 days. Make an extension a condition of purchase. 'I'll buy this parrot but only if you agree to extend my right of short-term rejection under the Consumer Rights Act 2015 to two months (you can ask for longer, if you want) and write on the till receipt that this has been agreed. And I don't care if I am holding up the queue.' 

Use Credit Card By paying with your credit card on a purchase which has a cash price of more than £100 and up to £30,000 you may get extra protection under section 75 of the Consumer Credit Act 1974. This makes the credit card company equally responsible with the seller for any breach of contract or misrepresentation. Useful if the seller goes out of business or is especially difficult. You still get the protection if you paid with a mixture of cash and credit card so long as the cash price exceeded £100. And that's £100 on the particular goods you are moaning about rather than the total of your entire shopping from that trader. But beware. Credit card companies are starting to refuse to accept liability where there has been in intermediary which has processed the transaction. Whether or not they are legal justified will depend on the arrangement with the intermediary but transactions through Amazon Marketplace or Pay Pal will probably mean that section 75 does not apply.

Avoid Duff Present Embarrassment It's embarrassing for the relative or friend (or former friend!) to whom you have gifted the purchase to come back to you and tell you that the present has fallen to pieces and was rubbish. The seller may inform them that can take  running jump because they weren't the buyer and so they cannot complain of a breach of contract. Put them in the position of being able to complain directly to the seller without having to breathe a word to you. Get the seller to write on the till receipt (if it's long enough, otherwise continue on the back): 'This purchase is for X and we agree that she shall be entitled to enforce all terms for their sale as the third party.' If the seller won't agree before you say you are buying, tell them you will have a go at the shop next door and don't worry if you held up the queue. Alternatively. transfer in writing your rights under the contract to the person to whom you gifted the purchase and tell the seller in writing that you have done so.  Of course, as purchaser, you could always take the damned thing back yourself!

Be strong on No-Receipt If the seller has agreed to a refund or credit note within a specified period but makes production of the receipt an essential condition of going along with this then you've had  it should you have lost the receipt - unless you get the seller on a very good day or are dating the manageress. But this does not apply where the goods are below legal standard although it is only reasonable that you should be able to satisfy the seller that you bought the goods from them and not one of their rivals. If no receipt you may have some other proof like a credit card statement. Nothing whatsoever available? Then the conversation may go like this.
'Do you accept I am a truthful person?'
'Yes.'
'Well, I as a truthful am  personal telling you that I purchased this item (a) from you; (b) when I say I did; and (c) for the price marked on it.'
'Sorry, sir, but our policy is that we must see the receipt.'
'Which means I have to sue you and claim the price, interest, court fees and my car park expenses for today and you will have no defence. There is no reason why the judge should not accept my word. What a complete waste of time.'
'I'll just get the manager.'

Don't be sneezed at  I am sick and tired of catching the germs of other shoppers as they sneeze in my face. So should you be. but for sneezing in your face, not mine. You may be entitled to compensation. Really. See http://www.breakinglaw.co.uk/search/label/sneezing%20claims

Buy a copy of my book Breaking Law and do yourself a favour and me a favour. Make a nice Christmas present and the pages won't fall out. There's loads of law in it and it's in plain English. And jokes. And my time with the Krays. And template letters and court documents. And template pre-nuptial, cohabitation and no-sex (what?!) agreements. It sounds good. I think I'll get myself a copy.

Compliments of the Season and a Happy New Year
  


Tuesday, 12 December 2017

Tax Penalty Invalidated Because Imposed by Computer

A company was late in filing its tax return. Result? You guessed right. It was fined £100. It appealed against the penalty to the first-tier tax tribunal. 

The tribunal judge wanted to be satisfied that the the Revenue's determination to impose a penalty had been validly made. It was for the revenue to prove this was so. The Taxes Management Act 1970 section 100(1) says that..."an officer of the Board authorised by the Board ...may make a determination imposing a penalty under any provision of the Taxes Act and setting it at such amount as, in his opinion, is correct or appropriate." 

From such documents as were produced to him in the case, the tribunal judge concluded that the penalty notice had been issued automatically by a computer as had been the covering letter sent out with it to the company. It appeared that the Revenue's computer was programmed to run checks shortly after the due date for filing a return that was entered into it. If it found no entry for the return being received, the computer caused an entry to be recorded that a determination was made for the imposition of a penalty and the computer issued a notice to this effect. All without any decision making by an officer of the Revenue. 

In a judgment just published, the judge ruled that the requirement in section 100(1) of the 1970 Act mentioned above was for a flesh and blood human being who is an officer of the Revenue to decide to impose the penalty and then give instructions in relation to it which could be executed by a computer.

The judge quashed the penalty but in doing so made the point that his decision was limited to the late company tax return penalty which was the subject of the appeal and should not be taken to apply to other penalties for different taxes under schedules 55 and 56 of the Finance Act 2009. Nevertheless, it is an argument which may well be run in cases involving other taxes but there different statutory wording may apply. Two other matters. The decision in the company's case was not an upper tribunal decision or higher and the Revenue did not address the issue of the determination's validity or engage in the appeal in a very active way. On another day, it may well have much more to say which is relevant.

If you are aggrieved by a penalty, you might ask the Revenue who decided to impose it and,if not a fleshed blood human being, why not.

The company's case was Khan Properties Ltd v Commissioners for HMR&C [2017] UKFTT 0830 (TC)

Legal Aid Where Domestic Violence: New Rules: Apply Again?


The odds on getting legal aid these days are about as great as winning more than £1m on the National Lottery. It's different though when you want the legal aid for a private family dispute such as over contact to children and your opponent has used domestic violence to you or a child or there is a risk of it. Legal aid then becomes much more likely on 8 January 2018 when the Civil Legal Aid (Procedure) (Amendment) (No2) Regulations 2017 SI 2017/1237 come into force despite all those brackets and so a reapplication may succeed  if legal aid has been refused. 

You have to produce evidence of the abuse or the risk of it to support your legal aid application. The requirement that the evidence of abuse should relate back to the previous five years (originally, two years) has been scrapped. Now there is no time limit but remember the application must succeed on merits.

As to the reckonable forms of evidence, there are still the old ones but also new ones and broadened ones. The old continue include an arrest, caution for or conviction for a domestic violence offence or the obtaining of a non-molestation order. The new include a letter from a UK domestic violence support service that they provided you with support – there is an objective element here in that the author must state their reasonable professional judgment that you are or are at risk of domestic violence – or even a letter or report that admission to a refuge was refused after allegations of violence. Also reckonable, letters from a local authority or housing association officer (objective again); a public authority which has assessed violence or risk; an independent domestic violence adviser providing support; and the Home Office confirming that leave to remain has been granted under the Immigration Rules 1971 domestic violence provisions. The burden on GPs is relaxed in that appropriate supporting evidence will now be accepted from other health professionals registered with a relevant regulator including a paramedic or social worker.

Say the risk is perceived on the strength of violence towards a previous partner or other family members but not to you? A further change says that evidence to this effect can count.

Judges will continue to be alert to the possibility of invented or exaggerated allegations of violence purely to secure legal aid. The amendment regulations are similarly alert. Legal aid may be withdrawn where a non-molestation etc injunction has been obtained without notice and subsequently been set aside and also, following certain forms of evidence, a public authority writes to confirm that you were neither a victim or at risk of domestic violence.  

Good luck. And for how to win compensation against the perpetrator of domestic violence, see my book Breaking Law





Sunday, 10 December 2017

DIY Financial Remedy Consent Orders: Templates

https://www.judiciary.gov.uk/publications/practice-guidance-standard-financial-and-enforcement-orders/\

The above link could be invaluable to you. Click on it and you will find what the top family law judge for England and Wales has to say about the template orders available for financial cases following marriage and civil partnership break ups. In particular, the link will take you to those templates. What is likely to be of special interest are the templates which can be used where the parties have reached an agreement about what is to happen post-divorce or dissolution in respect of sharing of property, income, pensions and Spotty the Dog.

The agreement should be incorporated in an order of the court for a variety of reasons: most important is that without an order either side could attempt to wriggle out of the arrangement at some time in the future and so no order risks uncertainty. The proposed order has to be submitted to the court and will only be approved and made by a judge if they are satisfied that it achieves fairness for both sides. The court will require completion of  a shortish form giving a summary of each side's finances and intentions about future living arrangements and other relationships.

If you or your spouse or partner have been represented by a lawyer in negotiations then the lawyer will draft the order. Perhaps you thrashed out the agreement without lawyers. In that event, you can go to a lawyer just to draft the order. One lawyer each is the ideal but it is possible for one lawyer to do the drafting at the request of one side and for the other side to satisfy themselves about its contents without legal help. The same lawyer must not advise both sides on the draft document. There are  non-lawyer firms who will do the drafting at a lower price than a lawyer would charge. The preference should be to get a lawyer to do what is necessary.

Drafting an order without any professional assistance to either side is the last resort. Something of importance could easily be left out or the wording you adopt might lead to the wrong interpretation of the wording and so unintended consequences.  However, if  the money just 'aint there to engage a professional, you can have a stab at a DIY draft order but utilising one of the templates the top judge likes so much. If the judge who considers it reckons the arrangement is unfair or there is some ambiguity in what you say, you will hear more from the court and have the opportunity to put things right.

You'll find plenty in my book Breaking Law (here he goes again!) about finances on breaking up and many other aspects of matrimonial law. Why not buy a copy as a Christmas present for your other half? It may lead to a reconciliation.   

Wednesday, 29 November 2017

Dear Harry and Meghan

Dear Harry and Meghan (if I may)

Let me be the 2,689,767th person today to congratulate you on the occasion of your engagement to be married. I wish you every happiness for the future.

You may feel it is indelicate of me but I feel I must raise the topic of pre-nuptial agreements. I have never hidden my view that, generally, any person who seeks to enter into such an agreement with their future spouse or partner is despicable. On the other hand, I know that some engagements  would falter if such an agreement was not entered into. Under the law of England and Wales as it currently stands,  there is no cast iron guarantee that an agreement would stand up if it was challenged in court but there is a good chance that the court would follow it so long as it was fair in what it said, freely entered into and the party challenging it was not the victim of fraud or misrepresentation by the other party.

It may be that in the light of your particular financial circumstances - and I fancy that you, Harry, have beneficial interests in a number of trusts - I could sympathise with your wish to go down the pre-nuptial agreement road. If that be so then why shell out £1K per hour on the charges of a Central London lawyer when for just £19.99 - though the publishers and Amazon etc have deals on at the moment - you can access a template agreement in Breaking Law by Stephen Gold? Crikey, I've just realised, that's me. And you could also make an agreement just to cover cohabitation for the time being in case plans were changed. All sorts of remote and ridiculous contingencies are sometimes contemplated. Anyway, there is a cohabitation agreement template as well in Breaking Law which many couples who never plan marriage or civil partnership would find handy so as to protect their respective positions.

I'm not expecting an invite but I will be watching you next May and wondering whether you put Breaking Law up for sale on e-bay after you had finished with it. 

Kindest regards
Stephen
PS I realise you won't be needing the no-sex agrement template but you may find it interesting.

Monday, 27 November 2017

ACCELERATED POSSESSION: NEW FORMS

New claim forms for seeking possession of a house or flat let to a tenant under an assured shorthold tenancy are to be used as from 1 December 2017.  Because of changes in Welsh housing law, separate forms have been devised for proceedings in England and proceedings in Wales. The defence form has been revised too and with different versions for England and Wales. The claim form for England is called the N5B England and the claim form for Wales is called the N5B Wales. Cool.

The new forms can be accessed on http://formfinder.hmctsformfinder.justice.gov.uk 
If you use the old form on or after 1 December 2017 it is likely to be bounced back to you. If it isn't, you could well  be refused a possession order when the judge takes a look at it and have to amend your paperwork. No problem will arise when completing the claim form online because you will be completing the correct form. 

There are numerous traps for a landlord seeking a possession order and as many opportunities for tenants to deny their landlord possession because they got it wrong. For these and the landlord pain and tenant joy of a penalty over failure to protect a deposit, see my book Breaking Law.

Friday, 24 November 2017

Get £5 off Breaking Law

If you're looking for the perfect Christmas gift for the lawyers, litigants and vigilant consumers in your family then your search is over! Buy them a copy of Breaking Law at £5 off the RRP!

If you order on my publisher's website before midnight 1st December, it's only £14.99*, not the usual £19.99*, and you can buy as many as you need at that price.

All you need to do is enter the code breakingblack17 when you check out on the Bath Publishing website. Or you can click the button on the left.

And as its nearly the festive season please feel free to share the code with anyone else you know.

*(plus £3.50 p&p)

Thursday, 23 November 2017

Statutory Demands: New Rules

You may only be interested in this if you are a lawyer doing insolvency work or a debtor trying to prevent your creditor from making you bankrupt (and remember that no creditor can now do this unless the amount of the debt is at least £5000 although you can apply for your own bankruptcy owing less).

Bankruptcy proceedings cannot generally be launched unless the creditor has previously brought a form called a statutory demand to the debtor's attention. That must allow the debtor 21 days to pay up after which a bankruptcy petition can be issued and 18 days to apply to the court to set it aside because, for example, the debt is disputed or the debtor has a cross-claim against the creditor. 

On 8 December 2017 the procedural rules dealing with statutory demands are amended by the swingingly entitled Insolvency (England and Wales) and Insolvency (Scotland) (Miscellaneous and Consequential Amendments) Regulations 2017 SI2017/1115. They say that the court can refuse to issue a bankruptcy  petition if it is not satisfied that the creditor has discharged their obligation to do all that is reasonable to bring the demand to the debtor's attention. Personally handing the demand to the debtor is the usual and best way of satisfying the obligation but very, very, very, very occasionally  (I don't think) that is not possible because the debtor just happens to be hiding away from their creditor. 

The other statuary demand changes require the periods shown on the demand for paying up and applying to set aside to be extended when the demand is being served outside England and Wales. If this is not done, the demand could be invalid.

There's plenty on bankruptcy - avoiding it, pursuing it and coping with it - in my book Breaking Law.

£91K LATE PAYMENT TAX PENALTY QUASHED

A tax penalty of just over £91,000 has just been quashed by the tax tribunal in Pearson v HMRC [2017] UKFTT 0780 (TC). It was capital gains tax for a cool £1,833,000 that CEO Mark Pearson had been due to pay on the sale of company shares. That tax bill should have been settled on 31 January 2016 but Mr Pearson was around six months late. He claimed that he paid as soon as his financial circumstances permitted. But did that afford him a get-out?

The law for late payment of most taxes (this does not include VAT) is contained in the Finance Act 2009 at schedule 56 sub-paragraph 16(2). Better than War & Peace but not a scratch on Noddy Goes to Toyland. The tribunal judge ruled  that the test to be applied to whether or not Mr Pearson could escape his penalty - and it was a different test to the one the parties' representatives were suggesting - was this. Was the payment late due to an insufficiency of funds and, if so, did that insufficiency arise by reason of events which were outside his control? If the answer was 'yes' to each then Mr Pearson would have a reasonable excuse - and so will you if in a similar situation. The judge was satisfied that he could give that 'yes' answer to both questions and so the penalty disappears. 

The judge did say that Mr Pearson might have avoided the penalty being imposed in the first place if he had kept the Revenue better informed about his difficulties in the run up to the deadline for payment. The Revenue, he thought. might have reacted a little more sympathetically if that had happened. Mr Pearson appeared to accept that he was at fault in this respect.

Unreliable Hair Strand Testing for drug and alcohol use

Did hair strand tests mark you down as a drug addict or alcoholic - or both? And was the only drug you had ever taken  a paracetamol tablet for a headache and sneezing and the only drink you had ever consumed a glass of Babycham at your Mum's birthday party? Then you may be able to secure the overturn of a family court order which went against you on the strength of faulty forensic testing evidence. 

Radox Testing Services (see http://www.breakinglaw.co.uk/search/label/forensic%20evidence) have already been the subject of possible concern, according to the Ministry of Justice. Now the Ministry has announced that it is treating test results by Trimega Laboratories Limited between 2010 and April 2014 as potentially unreliable. Testing by this company in criminal proceedings has been the focus of some media attention since the announcement. But family - and possibly non-family - civil cases will also be involved. Should you have been the victim in such a case of a miscarriage of justice on the strength of a dodgy forensic test by Trimega then, put down the cuppa, cancel Chase for 5pm today and get to a solicitor or legal advice agency.

Thursday, 16 November 2017

Free Company Snooping

A judgment for debt is only as valuable as the ability of the debtor to settle it. That's why I implore you to make enquiries about the financial stability of the debtor before taking the risk of pouring good money down the litigation drain. Searching the Register of Judgments, Orders and Fines run by Registry Trust  for details of High Court and County Court judgments against the debtor which remain unpaid and with credit reference agencies are cheap ways of making those enquiries (see my book Breaking Law which I have not mentioned since breakfast).

And if it's a company which owes you money or you are just a nosey-parker, bless you, a new cheap way of getting some idea of their strength or lack of it - apart from obtaining copies of their accounts at Companies House - is to search the data on commercial and corporate ownership run by the Land Registry. The search would also enable you to identify properties at which you might want an enforcement agent or bailiff to seize goods or to figure in an application for a charging order to secure the debt.  The Land Registry holds details of 3.3 million freehold and leasehold properties in England and Wales owned by UK companies and corporations and  overseas companies. 

The big deal is that searching for this information has just become FREE! To register for the data go to https://data.landregistry.gov.uk

Wednesday, 15 November 2017

Employment Fee Refunds: Claim For Christmas

Waiting to claim back a fee unlawfully extracted from you for  an employment tribunal claim (see http://www.breakinglaw.co.uk/search/label/employment%20tribunal%20fees) ? Then, take it away! The scheme for repayment has now been opened out. As from today, you can take the initiative and put the claim forward. For precisely how to do it, go to www.gov.uk

Good luck!

Thursday, 9 November 2017

There's A Bee in My Honey - And It's Dead!

I once tweeted that I had jars of honey for sale containing live bees. Just a joke, you understand. No offers to purchase were received but I gained a health shop as a follower which quickly decamped upon more careful consideration. 

Alas, nothing funny about one of the two jars of natural raw buckwheat blossom honey I ordered through Amazon the other week. One of them had the corpse of a bee inside (or alternatively a wasp but I cannot be sure until I have had an autopsy performed although a quickly convened jury reckoned, on balance, that it was a bee). It's all well and good that next year EU legislation will help companies introduce such delights as locusts, mealworms and crickets into our diets but, the entire corpse of the aforesaid insect was, I thought, beyond the pale.

I decided to reject both jars. I notified rejection through Amazon - on line, of course- and asked for the supplier to arrange collection.  In response, I was given a list of option returns. Waiting for the supplier to call was not one of them. Not being a litigious type, I decided to be merciful and to indicate I could return via a locker at a local store. However, when I was informed that the locker reservation would only be available for what was a very short period, I changed my mind. This was my web question and chat with Amazon.


Initial Question: I cannot return during the limited locker time allowed and revert to my original request that the seller arrange for collection. It is not my legal obligation to be put to the inconvenience and expense of repackaging and redelivering.


12:30 PM GMT Surendar(Amazon)Thank you for contacting Amazon.co.uk. My name is Surendar.

Am I chatting with S Gold?


12:30 PM GMT s goldYes


12:31 PM GMT SurendarHello Gold, I can understand your concern regarding this. Let me check and help you in this.

12:33 PM GMT SurendarJust to confirm, is this the item you are referring for:
Natural, raw buckwheat blossom honey (1 kg) ?
Natural, raw buckwheat blossom honey (1 kg) ?


12:34 PM GMT s goldYes, two jars.

12:34 PM GMT SurendarThanks for confirming.Please bear with me 2 minutes while I check this for you.

12:36 PM GMT SurendarI have checked and see that the return label is created today, you can return the item within 3 business days.

You no need to worry for the package, please return the item with any of the box you have.


12:38 PM GMT s goldPlease reread what I have already said. I am NOT prepared to be put to this trouble. There has been a most serious breach of contract - a dead insect in one jar. My legal right is for a return of the price paid for the two jars and reimbursement of consequential losses. The seller must COLLECT.


12:40 PM GMT SurendarJust to confirm, is the insect found on both the jars you have been received?

12:41 PM GMT s goldNo one but the contract is not severable. If the product cannot be trusted - one is unfit for human consumption - then I am entitled to reject both jars as I do.

12:43 PM GMT SurendarOkay Gold, I'll forward this issue to the internal team and they will update you via email in 24 hours.

12:43 PM GMT s goldNoted. My name is Stephen Gold.

12:44 PM GMT SurendarI'm sorry, I will forward this issue to the internal team they will reach you via email in 24 hours.

12:44 PM GMT s goldOK.


And then, within 24 hours, Amazon  - not the actual supplier under the contract -returned to say they were refunding the full purchase price and, so far, they have been silent about any return. It looks like the honey - and the bee- will soon be destined for my dustbin.

Where goods are being rejected because they were not up to legal standard, as in this case, the Consumer Rights Act 2015 says that the consumer must make the goods available for collection by the seller unless the consumer has agreed to return them. That means that, as a general rule, the seller must make the necessary arrangements to get the goods back. Either way, the seller must bear the expense of return except for any costs incurred by the consumer in returning them in person to the place from which they originally got them. Different rules apply to cancellation where the distance selling regulations come into play - and they do cover on line transactions - but in this instance I was relying not on those regulations but on the 2015 Act and a breach of contract.

For much, much more on consumer rights and template letters and court forms, see Breaking Law - and if the pages fall out, you may have a claim!



Wednesday, 8 November 2017

Vulnerable in a Family Case? New Rules

Involved in a family case  - may be about child welfare or matrimonial finances - as a party or witness and terrified that you will be harassed at court by the other party or their family or by other witnesses? I have just the thing for you. New procedures to protect you by courtesy of the Family Procedure (Amendment No 3) Rules 2017 SI 2017/1033 which come into force on 27 November 2017. A practice direction to supplement the new rules will come into force and be published on the same date.


The court will have to consider as soon as possible after the case has started whether a party or witness is vulnerable and, if so, what steps to take to protect them. Any concerns can be raised in the paperwork which commences the case or through a specific application which can be made at any later stage. The court may be prepared to direct that you give your evidence or otherwise participate in the proceedings from behind a screen in the court room, give your evidence via video link or give your evidence separately from everyone else at some earlier stage than the full final hearing. If you might have difficulty because of your vulnerability in giving evidence or understanding the questions then it will be open to the court to appoint another person to assist you in the witness box.The rules also provide for help for children and persons who lack the mental capacity to deal with evidence.

A welcome move. Family courts  have lagged behind the criminal courts in ordering measures of this kind.

For lots on how to cope with family cases and template pre-nuptial, cohabitation and no-sex agreements, see my book Breaking Law.


Sunday, 5 November 2017

Non-Matrimonial assets. Keep Out: 'It was mine before I met you!'

If you are not going through matrimonial financial proceedings or have no plans to do so for the foreseeable future then don't waste your time in reading any more of this and instead catch up on the latest MP to have wished they kept their hands to themselves. 

'I inherited that money so it should be ignored.'
'I won the lottery after we had separated. That's my cash.'

These are the sort of pleas that are often to be uttered - sometimes screamed - out of the Family Court which deals with the division of assets and income on the break up of a relationship. 

But what does the law say? It talks of non-matrimonial assets which means property and cash which are NOT the product of or generated by the parties' endeavours during the marriage or civil partnership, such as an asset which has been inherited or gifted or which was owned by one party before the marriage or partnership or has been obtained by them as a result of their efforts after separation. 

Assets such as these may often be ignored when it comes to deciding who gets what. But they may sometimes be taken into account so that they are shared by both parties where that is fair: especially, where  they have been mingled with the family assets and the relationship has been a long one. The family home, although brought into the relationship by one of the parties, will usually come up for sharing unless the relationship has been a very short. The other situation in which one party will be able to gain some benefit from assets of the other which are clearly of a non-matrimonial kind is where that is fair because of the needs of that party (where, for example, that party is the sole or main carer of children of the relationship and reasonably requires some money out of the assets to buy another home once the family home is sold). 

The Court of Appeal has just been considering non-matrimonial assets in a case called Hart v Hart [2017] EWCA Civ 1308. What the case demonstrates is that there is no judicial appetite for a lot of time and money being spent on hearing evidence and argument on whether certain assets are matrimonial or non-matrimonial property. There needs to be a decision made at one of the preliminary hearings where there is a contested application as to whether the court should hear evidence and argument of this kind. If the facts clearly demonstrate a sharp dividing line between matrimonial and non-matrimonial property then the court should use that line for the purpose of deciding what award to make. If, on the other hand, an investigation would require an account to be undertaken of the relationship  or some other expensive investigation and/or it would be of doubtful utility then the court could be expected to say that it was neither proportionate nor required to achieve a fair outcome. Should an investigation be justified then the court would have to direct how particular or general it should be.

The distinction between matrimonial and non-matrimonial assets may continue to be of practical importance. However, if what looks like a disproportionate or pointless investigation into the distinction is being sought by your opponent to which you are opposed, then ask the judge - with the greatest of respect - to have a butchers at Hart v Hart. 

Wednesday, 1 November 2017

Personal Injury Compensation Up

Injured in an accident and making a claim? What's the claim worth in respect of your pain and suffering and what is called loss of amenities? You will get a good idea from a publication which judges and lawyers use to provide guideline figures. It's called Guidelines for the Assessment of General Damages in Personal Injury Cases (catchy title, eh?) and is published by Oxford University Press on behalf of the Judicial College. It's available to the public. A new edition has just been published with higher figures to reflect the fact that there has been a retail prices index increase of 4.8% in the two years since publication of the previous edition. Every case can be different and so no judge will be a slave to the guidelines: they will depart from them if the evidence justifies it but you will get a really good idea of the ball park figure you should be aiming for from this publication.

The government is threatening legislation to bring down the awards which courts can make in cases involving whiplash and minor psychological injures as from 1 October 2018. But there's no legislation yet and, at least for the time being, the much higher figures in the Guidelines will apply.

So, for example, for a minor neck or minor back injury, where you fully recover within three months, you are likely to be awarded between £2,050  and £2,150. For other general minor injuries with a three month recovery period, the range of damages is likely to between £1,200 and £2,150. What the guidelines do emphasise in these cases is that too casual an approach to the length of time before full recovery  has taken place should be avoided and that special regard should be had to the fact that recovery may not occur at an even pace. In some cases, the pain and suffering could be very intense for a few weeks and then only moderate, whereas in others it could be moderate for the whole period.

At long last, judges have been advised that in cases involving scarring, there should be no difference in their approach when dealing with a male rather than female. Previously, females have collected higher damages than males.

On top of the compensation I have been talking about you may be entitled to recover specific losses such as loss of earnings, damage to property, the cost of physiopherapy treatment and so on. 

It would be advisable for you to take in a solicitor to help you with a claim though you will not be able to obtain legal aid.  Most solicitors will operate on a 'no win, no fee' basis. In that situation, don't sign up for a high success fee where the claim is straightforward and there is to be no dispute about you being entitled to something. There's much more on this in my book Breaking Law (which I have previously mentioned one or twice).

And, remember, the new guidelines will apply to your claim whenever the accident occurred. If your compensation is being negotiated or decided by the court now then the new figures and not the old figures will apply.