Friday, 27 October 2017

Matching Children For Adoption


'Adopter-led matching' they call it and it involves would be adopters themselves identifying children who they might like to adopt. And it's coming in next week on 2 November 2017.

Successfully matching children up for adoption with prospective adopters and doing so more speedily should result from the new Adoption and Children Act Register (Search and Inspection) Regulations 2017 SI 2017/97. The database of  children up for adoption and prospective adopters who have been approved  will be accessible to those prospective adopters as to certain prescribed information – nothing sufficient to identify -  for ‘adopter-led matching’ which will often lead to consideration of children who would not have been reckoned through traditional matching techniques.  It will not be open to the prospective adopters to approach any child or their birth family and they will continue to need to work closely with the staff who run the database , their own social worker and subsequently the child' social worker, to follow up any links generated by their database search.

MasterCard Claim Update

Lawyers for Walter Merricks have taken two steps to challenge the decision of the Competition Appeal Tribunal. They have sought permission from the Court of Appeal to make the challenge to it and also sought permission from the Administrative Court of the High Court to apply for judicial review. The second step has been taken as a precautionary measure, lest it transpires that the Court of Appeal does not have jurisdiction to accept the challenge as there is some legal doubt about this. 

Mr Merricks remains bullish about his prospects of success. To address the Tribunal's reasons for throwing out the claim, a detailed supplemental report has been prepared by leading economists and forensic accountants. It is claimed to conclusively address how much of MasterCard's illegal card fees were passed on to consumers in the form of higher prices and demonstrate that Mr Merrick's proposal for distribution of the damages sought from MasterCard would result in a payment which would broadly reflect the actual loss suffered by each individual consumer on who behalf he is claiming - which could be you or me?!

Thursday, 26 October 2017

Service Charge Victory: Insurance Premiums Slashed

How we love service charges in residential leases: almost as much as poisoned tea and six strokes of the cane at school for doing nothing wrong. It's because of this love that I have visited the topic before - see http://www.breakinglaw.co.uk/search/label/service%20charges - with news of successful court and tribunal challenges by tenants. Here's another one, just like the other ones.

In Cos Services Ltd v Nicholson and Willans [2017] UKUT 382 (LC) before the upper tribunal of the lands chamber, the service charge in issue took the form of buildings insurance premiums for three years in respect of Chiltern Court in Harpenden which is a purpose-built block of 16 flats with separate garages. The tribunal upheld the decision of a first-tier tribunal that the premiums sought (which had to be shared between each flat) for each year in question should be reduced respectively, ignoring the pence, from £12,598 to £2,803, from £12,670 to £2,819 and from £11,150 to £3.017. Wow!

The crucial point to be decided was whether the premiums asked for had been reasonably incurred. That meant, said the judge, that consideration had to be given to both the rationality of the landlord's decision making and the reasonableness of the charge. It was not necessary for the landlord to show that the premium charged was the lowest that could be obtained in the market but it still had to be reasonable. A landlord would be required to explain the process by which the policy and premium had been selected, with reference to the steps taken to assess the current market. Tenants might, as happened in this case, place before the tribunal the quotations that they have been able to obtain from elsewhere  although they would have to ensure that the policies were comparable. 

As also happened in this case, it was open to a landlord with a number or properties to negotiate a block policy covering the entirety. However, the landlord would then need to prove that the block policy had not resulted in a substantially higher premium which had been passed on to tenants of  a particular building without any significant compensating advantages to them.

Wednesday, 25 October 2017

Taxpayers Win On Penalties

Two more taxpayers have defeated HM Revenue & Customers over penalties imposed for late tax returns having persuaded the tax tribunal in each case that they had a reasonable excuse. See http://www.breakinglaw.co.uk/search/label/tax%20penalties for what is required to prove you had a reasonable excuse and for previous cases on the topic.

In Robert Morris v Commissioners for HMR&C [2017] UKFTT 0749 (TC)  Mr Morris who had been caned for penalties totalling £2,900 in respect of two separate tax years, had completed those returns for each year and before the deadline. When he had done the same in a previous year, the website had generated a receipt and a long reference number. But for these two later years, no receipt and no reference number appeared. Instead, said Mr Morris, he had each time received an on screen message on a very basic web page saying either "Thank you for your submission" or 'Submission complete'" He treated that as good enough and thought he had done all that was required of him. 

The Revenue's representative at the tribunal could not say that what Mr Morris had claimed was incapable of happening and it put forward no evidence that it was technically impossible or something that was unlikely. The tribunal accepted that Mr Morris was telling the truth and so decided that he had  are reasonable excuse for no returns for those years having apparently been received by the Revenue when he said he had sent them.

And in Roderick Northam v Commissioners for HMR&C [2017] UKFTT 706 (TC) Mr Northam had not been informed by his accountants that, although he had signed his return before the deadline, they were not proposing to submit it in time because they required further information. He had taken reasonable care to ensure that his return was in on time.  

Monday, 23 October 2017

Fiddled By A Black Cab Driver

You fool, Gold. I didn't look at the meter properly before getting out of the taxi. My excuse is that I was in a hurry and also busy helping to usher out two other passengers from the back of the taxi including a four year old child. But that's no excuse, Gold and there will be serious trouble if this happens again.

So thinking that the meter indicated something less than £8 - the return journey was £5.50 but faster - I stupidly said to the driver 'How much?' '£10,' he replied but there was something about that look on his face that made me think he was taking me for a mug. I gave him a £10 note but no tip because I didn't trust him.

The taxi was ordered through the mytaxi app. The fare receipt was emailed to me promptly after the driver had left. It was for £8.

I complained to mytaxi which dealt with the matter promptly and efficiently.
 

Rene replied:

In fact, I have been given £5 credit and hope the same guy doesn't turn up next time. Or may be I'll take a bus.

Disappointing.

You can read about how to deal with claims arising out of dodgy taxi routes in my book Breaking Law.

Friday, 20 October 2017

Employment Tribunal Fee Refunds

You'll remember the Supreme Court ruling that the fees taken by employment tribunals for making a claim were unlawful.....won't you?! For a memory nudge, please take a look at and enjoy http://www.breakinglaw.co.uk/search/label/employment%20law

The government committed to refund the fees wrongly collected. At long last, the Ministry of Justice has announced today its plans for doing just that. The fee plus interest at the rate of 0.5% (don't spend it all at once) will be paid back. Up to around 1,000 people will be contacted individually in the coming four weeks or so and given the chance to complete applications for  a refund. Then the refund procedure will be extended to more and more with further details to follow. Sounds more complicated than my tax return.

Friday, 13 October 2017

M & S Changes English Language

Last Friday I reported on the fruit displays I had seen at Marks & Spencer. Three  items labelled BEST BEFORE 6 OCTOBER 2017 being offered for sale on 6 OCTOBER 2017 (please see http://www.breakinglaw.co.uk/search/label/nonsense). I promised to report back after I had taken this up with M & S. Here is my report!

M & S say that they intend BEST BEFORE 6 OCTOBER to mean that the item is best consumed by the end of 6 OCTOBER so they refute the suggestion that it is still not at its best on that day. 

'But the end of 6 October is not before 6 October''
'Well that's what it means. That's how it's done by us and the industry.'
'Your customers might not buy on 6 October because they think it's too late.'
'We haven't had any complaints before.'
'Might you consider a rewording of the labels?'
'No.'

I just happened to be in the branch in question this afternoon. A fruit product with a best before date of today was on display but it had been discounted! And the staff seemed to be examining the fruit labels with extended eye balls.

Oh and the Waitrose car park clock at Richmond-upon-Thames was still five minutes slow with the exit barrier up which most customers were discovering having paid any charge.

Friday, 6 October 2017

Shopping With Specs


Breaking Law readers and regulars to this blog will know of my interest in fairness to consumers and the Waitrose car park clock at Richmond-upon-Thames and M&S fruit display in the same town (see http://www.breakinglaw.co.uk/search/label/nonsense). The clock, incidentally, was five minutes slow yesterday. It is true that the exit barrier was up so that it was possible to leave without tendering any money but there was nothing to suggest this was so on the machines which invited payment before the barrier is reached on another floor.

So what of the M&S fruit display? Well, they tell me that today is 6 October 2017 and if you examine the photographs above which I took this afternoon of the blackberries, white peaches and tomatoes shown opposite on display, you will see that they were all marked as best before....6 October 2017. I had to see a man about a dog and so did not have time to examine every item on display but three fruits in one store on the same day (and not for the first time) is bad enough. There is no suggestion that you would get a stomach ache if you consumed any of this fruit on or after today. But we expect a fruit which is not apparently marked down in price on account of its age to be at its best when we buy it. And we should not have to go shopping with a magnifying glass.  I'll see what M&S say about this and let you know.

Have a good weekend. And if you don't, well tough bananas but check the date.

Thursday, 5 October 2017

Revenue Goes Overboard on Alleged £4 Mistake: Penalties Quashed

Tabrez Akhtar was a partner with another person in a newsagents and post office. He had to get the partnership tax return in by 31 October 2015. His accountant posted it first class on 31 October 2015. HMR&C (the Revenue) didn't log it as received until ten days later. Then nearly three months later they sent it back. Why? Because they claimed there had been an arithmetical error in that expenses had been overstated by £4. The tax consequence of this alleged error would have been the grand sum of less than £1 per partner. The return was redelivered to the Revenue by the accountant who disputed any arithmetical error. The Revenue imposed on Mr Akhtar a penalty of £100 because they claimed the return had not been in by 31 October plus a daily penalty totalling £560.

Mr Akhtar appealed against the penalties to the First-Tier Tribunal, Tax Chamber.* The penalties were recently quashed in their entirety. The Revenue had gone wrong in

  • suggesting that the return had not been received by the 31 October, the Tribunal accepting that it was posted when the accountant said and so, effectively, the Revenue had sat on it.
  • charging daily penalties on the basis that the return was not back in their hands until the accountant redelivered it when it was only out of their hands because they had chosen to send it back to the accountant.
  • overlooking a statutory provision ( Taxes Management Act 1970 section  12ABB(1)) which allows the Revenue to correct "obvious errors or omissions in the return (whether errors of principle arithmetical mistakes or otherwise.)'
  • giving misleading information to Mr Akhtar (and they are frequently criticised for this) about what it would take to get a penalty quashed on the ground that there was a reasonable excuse  ** for what had gone wrong.
I reckon that's enough. Incidentally, remember that if you want to submit your return by post and not on-line then you must do so by 31 October. Also, it's now possible to put in a tax appeal on-line (see https://www.gov.uk/tax-tribunal ).

* The case was Tabrez Akhtar trading as Crawley News and Post Office v Commissioners for Her Majesty's Revenue & Customs [2017] UKFTT 0651 (TC)
** A reasonable excuse is one which is genuine and objectively reasonable when you take into account the circumstances and attributes of the actual taxpayer.




Tuesday, 3 October 2017

Company Crashes: Can the Directors be held liable to creditors?

The crash of Monarch Airlines has raised the question Are the directors personally liable for  
the company's debts? I am not going to answer that one and nothing here should be taken to suggest that any of the Monarch directors bear personal responsibility for money owed to their customers and others. But what I am going to do is deal with the position of company directors generally when the business collapses. There's a chapter devoted to this in my book   Breaking Law but here's the law of England and Wales in a nutshell.

As a general rule, directors are not personally responsible for the debts or contract breaches of their company. A notable exception is someone who was a director at a time when they was disqualified from holding that position or had given an undertaking not to act as a director. But there are other exceptions. Where a director has been up to monkey business  - fraudulent or wrongful trading, they call it - before the company went bust, the liquidator can apply to the court for them to make a contribution towards company debts. Continuing to trade and take in money at a time when the director knew or ought to have known that the company had no reasonable prospect of avoiding collapse may be enough.

And for misconduct after 30 September 2015 there's a new attack which the secretary of state can make on behalf of creditors who have lost out under the Small Business, Enterprise and Employment Act 2015 where disqualification proceedings have been successfully brought against a director in relation to conduct which has caused the loss.  Disqualification proceedings can even be avoided on the strength of a director's undertaking to pay compensation to aggrieved creditors.

MasterCard Claim: Latest Part 2

Walter Merricks has decided to battle on (see http://www.breakinglaw.co.uk/2017/10/mastercard-claim-appeal-latest.html) and will be applying directly to the Court of Appeal for permission to appeal against the Competition Appeal Tribunal's dismissal of his claim.

MasterCard Claim: Appeal latest

The Competition Appeal Tribunal has just refused permission to Walter Merricks to appeal to the Court of Appeal in the massive MasterCard claim because no right of appeal existed and that any challenge to the dismissal of the claim had to be made by way of judicial review (see http://www.breakinglaw.co.uk/2017/08/mastercard-claim-dismissal-appeal.html).  But it went on to say that if it had had the jurisdiction to give permission, it would have refused it! To which court, if any, will Mr Merricks go next? Watch this space. 

Monday, 2 October 2017

New Debt Protocol. It's in force!!!

Creditors and debtors. Remember that how you behave towards each other is likely to be dictated by a new protocol that came into force YESTERDAY (see http://www.breakinglaw.co.uk/search/label/debt). Failure by a creditor to comply could lead to tears for them and some joy for the debtor.

The Business and Property Courts: Hello and Welcome!


The Business and Property Courts (BPC) began trading today which may turn you on if you are a lawyer or are about to start a civil case involving, say, the most difficult building dispute known to man which only a judge who breaths, eats and sleeps nails, foundations and pylons could ever understand. They have been created as a single umbrella for these specialist courts across England and Wales - the Commercial Court, the Admiralty Court, the Chancery Division Courts and the Technology and Construction Court which will continue to operate out of Rolls Building in London's Fetter Lane and is the largest specialist centre in the world for financial, business and property litigation. 

But not just Rolls Building. The BPC's work will also be dealt with at regional centres in Birmingham, Bristol, Cardiff, Leeds and Manchester. All work in and out of London will be divided into courts or lists, namely the Admiralty Court, the Business List (with Pensions and Financial Services and Regulation as sub-lists), the Commercial Court, the Circuit Commercial Courts (formerly the Mercantile Court), the Competition List, the Financial List, the Insolvency and Companies List, the Intellectual Property List (with the Patents Court and the Intellectual Property Enterprise Court being sub-lists), the Property, Trusts and Probate List, the Revenue List and the Technology and Construction Court. A claimant without a listing allergy must choose which BPC court, list or sub-list into which they should issue, based on the principal subject matter of the dispute as well as the appropriate location in which to issue. The claims will be given a claim number with a prefix reflecting the court, list or sub-list of issue. Existing claims will retain their numbers. The new arrangements are designed to make it easier to transfer claims between the Rolls Building and the regions.


Claims issued in the county court at Central London, Birmingham, Bristol, Cardiff, Manchester, Newcastle, Leeds, Liverpool and Preston (or, presumably, sent or transferred there) and relating to specialist work of the type undertaken in the BPC will be marked ‘Business and Property Work’ by the court on allocation if not already so marked by the claimant and will be managed and heard only by specialist judges. And those judges must spend at least 20% of their time handling the county court specialist work or BPC work. Among the excluded work will be building claims (other than adjudication claims) worth under £75,000, invoice and other straightforward business claims worth under £75,000, land trust claims not combined with other specialist claims, boundary and easement disputes involving no conveyancing issues and Inheritance Act claims.

The present procedural rules will still apply to the BPC and with claims being started under Parts 7 or 8 of the Civil Procedure Rules 1998 (CPR). A new Practice Direction is being issued which is devoted to BPC work and will form part of the CPR 92nd update.

Those of you who are litigants in person, do bear in mind that the BPC is intended for the really big and complicated stuff. However, it may be that a county court claim demands the knowledge and experience of a specialist judge and, in that event, you may wish to start it  at or have it transferred to one of the county court centres mentioned above.