Monday, 30 April 2018

That Waitrose Car Park (Again)


Oh dear, another blip at Waitrose, Richmond-upon-Thames. Long-suffering visitors to this blog will be aware that things have a habit of going wrong there, especially when it comes to the car park (see http://www.breakinglaw.co.uk/2018/04/waitrose-loses-power-or-how-i-hate-self.html). So here we go again. 


From: STEPHEN GOLD 

Sent: 26/04/2018 18:47

Subject: Richmond Car Park



This is a copy of the car park ticket issued to me today at your Richmond-upon-Thames branch. I can offer you two bananas for the price of one and a free coffee so long as you bring your own cup if you can tell me the time of issue. Because I can’t. Given your miserable record on car park horological issues at the branch, can I suggest that you ensure tickets are printed with the time of issue in characters which can be deciphered without the assistance of the strongest pair of specs known to man and a specialist in the art of guesswork?

I am
Stephen Gold

Waitrose Customer Service 
To: STEPHEN GOLD 
Customer Case Ref 04769862  


I have informed the branch management team of your comments who will be able to contact the car parking company to ensure that the tickets are issued correctly with visible time and date information.


I do appreciate you taking the time to alert us to this problem.

Kind regards, 

Carole Harman 
Customer Care
Case Ref 04769862

Friday, 27 April 2018

Pay Slip Reform

As from 6 April 2019 (please note, that's next year!) pay slips will get sexier. For those whose pay varies according to the time worked, the pay slip will have particularise the total number of hours worked by way of a single aggregate figure or separate figures for different rates of pay. The idea is to assist you to identify underpayment, whether it be less than the minimum or living wage or the entitlement under your contract. And the obligation to provide a pay statement will be extended to all workers and not just employees.

If you don't believe me, go to the Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) Order 2018 SI 2018/147 and the Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No 2) Order 2018 SI 2018/529. But not in work time!!!

Thursday, 26 April 2018

County Court Judgment: Latest on Getting Instalment Order

'Judge, I can only afford £1 a month.'
'This is no good to my clients, Judge. They have a court order and they want their money IN FULL and NOW!!!'

There's just been a major ruling from the Court of Appeal * on how county courts should approach a debtor's plea for time to pay. Normally, a county court judgment will be payable within a fortnight. You can ask the court to give you longer or to allow you to pay by instalments. This you can do when admitting the debt having received the court claim form. Or if there is a court hearing which ends with you being ordered to pay, you can ask the judge there and then to give you longer than a fortnight or to allow instalments, although the probability is that the judge will not have time to go into the detail of your finances at that stage and will leave you to seek more time or instalments by a written application. Or you can make that written application at any time after judgment, whether or not there has been a hearing.

How should the court approach your plea, whenever you may make it? In the recent case, the debtor was offering £50 per month towards an £8,000 debt which arose out of a disputed traffic penalty ticket! But she was on the verge of bankruptcy and the £50 would not even have settled the 8% interest due on the judgement.  A county court judgment generally attracts interest if it is for at least £5,000. In rejecting this debtor's instalment offer, the Court of Appeal said that when a debtor cannot really afford to pay anything  and the creditor wants to get the debt paid off  NOW!!! and to bring enforcement action to achieve this then the court should let the creditor do as they wish and not allow instalments.

This guidance will almost certainly be trotted out by your creditor or their lawyer when you make a plea for time. But the guidance did not stop there and so make sure the judge hears more of what the Court of Appeal said. The  circumstances did not have to be exceptional for instalments to be ordered and there could be instalments even when the debtor is insolvent (they owe more than they are worth). However, the debtor has to put forward a realistic payment schedule backed up by evidence that the creditor can be expected to receive their money and any interest on the judgment within a reasonable period of time. There might be a case for refusing time to pay where the creditor has their own cash-flow problems. Equally, there will be other cases where a limited period of time will enable the debt to be paid without significant prejudice to the creditor, particularly where interest on a £5,000 plus debt is payable.

So don't be put off by asking for instalments if you need to. And remind the court that  your creditor cannot now seek to bankrupt you unless you owe them at least £5000. Also, interest on the judgement would come to an end if the creditor put in the bailiff and that produced some payment.

There's much, much more on how to handle debt and court proceedings about debt in my book Breaking Law. But hopefully the bailiff won't seize it! 

* The case is Loson v Brett Stack and Newlyn PLC [2-18] EWCA Civ 803

Sunday, 22 April 2018

The Prick Case. Titter Permitted


(1) HENRY MARTINEZ T/A PRICK

(2) HENRY HATE STUDIO & PRICK TATTOO PARLOUR LONDON LIMITED



Claimants

- and -

PRICK ME BABY ONE MORE TIME LIMITED T/A PRICK

GYNELLE LEON



Defendants

Legal proceedings are not funny. They are serious matters for the courts and the parties and are not intended as entertainment for the general public or for anyone else. But very, very, very occasionally there may just be a tiny (if you will forgive me) feature about a case that will raise a titter from you and for which you may be forgiven so long as the titter is not emitted in court. May I suggest that one such case was The Prick Case * which was decided last week in London's Intellectual Property Court.

The case was what is known as a 'passing off' claim involving a tattoo business in Shoreditch which had been set up in 2001 under the trading name of Prick Tattoos (the late Amy Winehouse was a client) and a retail cactus and succulent plant business which had been set up in Dalston in 2016 under the trading name of Prick. The tattoo business owners alleged that the cactus business could be confused with the tattoo business. You may have thought that such an argument would be difficult to sustain and you would be right. The claim was dismissed. 

* [2018] EWHC 776 (IPEC)

Wednesday, 18 April 2018

Waitrose Loses Power (or How I Hate Self-Service Tills)

I don't know what it is but when something goes wrong at the Richmond-upon-Thames branch of Waitrose, who happens to be there? Yes, your very own Stephen Gold (see
http://www.breakinglaw.co.uk/2018/04/lifting-and-speeding-at-waitrose.html).  Do see my latest exchange of emails with the long suffering customer service team at Waitrose. I'll leave it to you to judge whether the store will be getting rid of the self-serve tills. Personally, I'm not holding my breath.




From: STEPHEN GOLD Sent: 15/04/2018 13:35
Subject: POWER FAILURE AT RICHMOND-UPON-THAMES
I was in your revamped Richmond-upon-Thames branch yesterday afternoon when there was a series of electrical power failures in rapid succession which threw the premises into near darkness. Happily, I was not travelling in one of your lifts (up or down!) at the time and I positively did not avail myself of the opportunity to make off with a packet of smoked salmon without tendering payment.  However, the failures did put your battery of self-service tills out of action, obliging the customers who were in the course of patronising them to  abort and join one of the cashiers’ queues. I have to confess to a feeling of satisfaction at the fate of the self-service tills for I abhor them. They put human beings out of work; the operation of them intimidate and confound many customers; and they deny customers  the experience of engaging with other customers in a queue and communicating a smile or word of sympathy (depending on how charming or severe is their manner) with a human cashier.  In view of yesterday’s experience, might management remove and destroy the battery of self-service tills and return to the world which we formerly enjoyed when we were not ruled by blasted technology?  

Yours sincerely
Stephen Gold

From:customerserviceteam@waitrose.co.uk
To Stephen Gold
Sent 17 April 2018 at 16.22

Thanks for getting in touch Stephen.



I'm sorry to hear of the power failures that you experienced in our Richmond-upon-Thames, I appreciate the inconvenience caused by this. Whilst our self service tills are proving very popular with our customers, I understand that many of our customers prefer our main line checkouts and I also prefer to interact with Partners and other customers.  

We want to bring you the highest quality products and the best possible service, so we welcome and value feedback from our customers. I'm very grateful to you for your comments and have discussed them with the management at Richmond, who will consider them at their next review.

Thanks again for telling us about this. Please don't hesitate to contact us again if you have any more questions, comments or concerns.

We're passionate about continually improving the service we offer our customers. If you'd like to feed back on the service I've given you, please click on 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 £500 in gift cards. 


Kind regards 
Robert  
Waitrose Customer Care
Case Reference: 04730775

Monday, 16 April 2018

There's A Poisonous Fly In My Soup UPDATE


I have recently reported on the new costs regime which is to apply to package travel sickness claims (see http://www.breakinglaw.co.uk/2018/04/act-fast-on-package-holiday-sickness.html). The relevant legislation has been published today. * It will catch claims relating to gastric illness which are notified on or after 7 May 2018 and not before, which are for up to £25,000 and which are covered by the Package Travel, Package Holidays and Package Tours Regulations 1992. It is focusing on bellyaches and worse which are said to have been contracted abroad. 

Not only do we have a new costs regime for these claims but we have a special pre-action protocol 'for the resolution of package travel claims' and which operates hand in hand with the costs regime. The protocol sets out what steps a claimant should take before starting court proceedings in claims of this kind. It even includes a template letter of claim to be send to the tour operator or whoever else the claim is being made against. The protocol should be followed by a litigant in person in so far as is reasonably possible. However, the new costs regime will not impact on a litigant in person. 

* Civil Procedure (Amendment No 2) Rules 2018 SI/2018/479.

Friday, 13 April 2018

Act Fast On Package Holiday Sickness Claims (Or There's A Poisonous Fly In My Soup)

New court rules are about to come into force  - probably by the end of this month - which will encourage the travel industry to fight package holiday sickness claims.  They will limit the legal costs which the tour operator would otherwise have to pay if it lost the case. That means there will be less of a financial risk for them to try and get the claim thrown out. The message, then, is this. If you have been poisoned by food served up on a package holiday at a hotel abroad, start off your claim by issuing proceedings FAST so as to beat the new rules which are unlikely to be retrospective.

Behind the change is the steep increase in bogus claims and campaigning by the Association of British Travel Agents and others to protect tour operators.

Must go. I've got a terrible....

Tuesday, 10 April 2018

The 'I Don't Know Who Was Driving' Defence

Perhaps you were driving. Or may be it was your wife? Or could it have been your butler or Auntie Vera? After all, the lot of you regularly drive the car and any one of you could have been on that road at about that time a couple of weeks ago.


For a variety of road traffic offences such as speeding, the police can require you to tell them who was driving when the office was alleged to have been committed, whether it was you or somebody else. It is an offence not to identify the driver. But it is a defence to a charge that you failed to do so if you can show that you did not know when asked who the driver was and could not have ascertained with reasonable diligence the driver's identity.



Lord Howard of Lympne (former Conservative Leader Michael Howard) was asked by the Metropolitan Police who had been driving his car when the driver was clocked travelling at 37mph in a 30mph limit. It could have been him or it could have been his wife. Neither could remember which and the district judge in the magistrates'  court who heard the case when Lord Howard was prosecuted for not identifying the driver was satisfied that the couple were telling the truth. Nevertheless, Lord Howard was convicted on the ground that although in the first part of the form the police had sent to him he had stated ' The driver was my wife or myself. We don't know which,' he had not gone on in part 2 of the form to comply with the request to identify the driver if he was claiming it was not him ! 

Now, you may say that if that's the law the the law is an ass. Well, it transpires it wasn't an ass on this occasion. Lord Howard appealed against his conviction to the High Court  which meant there were rather more M'Luds about than usual. The High Court has recently quashed the conviction.* The magistrates' court had fallen into error in failing to consider whether the defence of not knowing the driver and not being able to ascertain who the driver had been was made out. And the High Court judges did express dissatisfaction with the police form in that it did not cater for the registered keeper to whom it was sent to be able to explain what steps they had taken in the Howard situation to try and identify the driver.

Before you get carried away with that defence next time the police drop you  a line, do bear in mind that magistrates will take quite a bit of convincing that the driver's identity really cannot be ascertained especially if the vehicle was travelling along The Mall or leaving the chippy at 3 o'clock in the morning??!!

There has been another recent  High Court case involving the same offence **. In that case, the vehicle's registered keeper asserted that he had completed the police notice, identified the driver in it and then placed the notice inside a suitable addressed envelope.  He had then left it in the post tray in the post room at his place of work. The person working in the post room had the responsibility for posting items left there and the keeper had assumed that the letter would be posted. The letter was never received by the police. The keeper was convicted of failing to identify the driver. And rightly so, ruled the High Court. He had placed what was his personal responsibility in the hands of a third party. He had not placed the letter either in the hands of the post office by posting the letter or used one of the other private posting companies which provided a comparable service. If he had then he might have escaped a conviction.

Happy motoring - to you, your wife, your butler and Auntie Vera.

* Lord Howard of Lympne v DPP [2018] EWHC 100 (Admin)
** Phiri v DPP [2017] EWHC 2546 (Admin)


Thursday, 5 April 2018

Lifting and Speeding at Waitrose



I've had my differences with the Richmond-upon-Thames branch of Waitrose (see http://www.breakinglaw.co.uk/search/label/nonsense and chapter 40 of Breaking Law) being one of my favourite shops. Car park clock which couldn't tell the time: dangling car park metal: price labelling; visiting pigeon. That sort of thing. I'm afraid they now have their ups and downs with a lift (sorry!) and seem to have gone over the top with vehicle humps positioned rather closely together to cater for shoppers speeding to get to the bargains. Here's my latest e-mail exchange with customer services.

From: STEPHEN GOLD 

Sent: 02/04/2018 16:24
Subject: Re: Waitrose Customer Feedback (02990134) 

Hello
I’m back. I see you have revamped the Richmond-upon-Thames car park and the clock seems to be working so many congratulations on fixing the problems, albeit after an eternity. 
Alas, I have two other matters to draw to your attention. I know that your local management professes to be alert by regular inspections to car park clock malfunctions and the danger of a customer’s head being knocked off by a suspended metal warning sign because you have told me so on a number of occasions. They now need to sharpen up on their hearing so that it matches their eyesight. The recorded message in the middle lift announces that the lift is descending when in fact it is ascending. I was first sort of aware of this about a fortnight ago when I thought I heard it announced that I was on the second floor and going down whereas I was in fact going up but put it down to a mistake on my part. But, no. I can confirm that the announcer does not know if she or the travelling customers are up or down. She was at it again today which is a pity because customers could decide to jump out mid-journey or not even enter the lift when they are above the ground floor believing that it is destined for what would be the wrong direction for them.  So would local management like to unplug their lug-holes and pin them right back and take a very good listen in the middle lift?
The second matter concerns the ‘humps’ recently installed in the ground floor approach to the car park barrier. I do not know if you are trying to keep me out but they are too high and severe with the result that my vehicle’s suspension has pleaded with me to try and get them lowered before it breaks up. As much as I am sure your customers are eager to get into the store before it sells out of products, I doubt that ‘ humps’ which are really suited to speed maniacs are really appropriate in the peaceful Borough of Richmond.
I look forward to hearing from you as, no doubt, do you, from me.
Yours sincerely
Stephen Gold 


Waitrose Customer Service 
To: STEPHEN GOLD 

Re: Waitrose Customer Feedback (02990134)  

Thank you for your further message.


We've spoken with XX (name deleted by me), who is aware of the issue with the lifts.  The branch aren't able to take the lifts out of use, however this will be fixed when the parts arrive to correct the issue.

The bumps are to UK standards and used across the business. These had to be installed to address the speed some vehicles were driving at the location. 
Kind regards 
Paul 
Waitrose Customer Care
Case Reference: 02990134





Wednesday, 4 April 2018

Matrimonial Finance: New Express Delivery

It may pay to hold off starting a Family Court application for a financial remedy in divorce and other matrimonial proceedings until 4 June 2018. That's because a new fast track procedure will apply to certain applications made on or after that date which could lead to a faster resolution. Faster = less aggro and, if lawyers are involved, less expense.

Which applications will be covered by the new fast track? Principally, applications for maintenance orders only (periodical payments they are called by the law, judges and lawyers) and applications for variation (up or down) of maintenance orders provided that the applicant is not asking for the court to capitalise what would otherwise be future payments and order a lump sum to be handed over and the monthly maintenance to stop.  Apply for maintenance plus a transfer or property or a lump sum and the fast track will not be triggered.

The new fast track procedure is modelled on the existing shortened procedure which is sometimes overlooked and should catch variation applications. The main feature of the new procedure is that the court is encouraged to decide the case at the very first hearing with these words: 'If the court is able to determine the application at the first hearing, it must do so unless it considers that there are good reasons not to do so.' That first hearing will will take place no later than ten weeks after the application has been issued.

Revised application forms will have to be used in place of the current forms A and A1 to make clear whether the application is a fast track job or is for the rest is what will be known as a standard procedure case.

You can thank (or curse) the Family Procedure (Amendment) Rules 2018 SI2018/440 for the changes. A new Practice Direction to supplement the rules is in the pipeline.

For tactics and tips on making or opposing a matrimonial type application do have a look at Breaking Law.