Thursday, 31 May 2018

Pre-Nuptial Agreement Valid Without Wife Taking Legal Advice

In Breaking Law (it is so embarrassing for me to keep mentioning that book and enticing you to buy a copy but needs must) you will find a draft six page pre-nuptial agreement which you can use, adapting as appropriate, before your marriage or civil partnership although I personally detest the things. I deal in the book with the current law in relation to such agreements. I there strongly urge you to ensure that independent legal advice is taken by each side to the agreement before it is signed up. But say one side does not get that advice. Is the agreement worthless? While the obtaining of the advice is highly desirable, an agreement may survive without it.

The Court of Appeal has just been dealing with the finances of a Swedish husband and wife in a case* where the wife asserted that the matrimonial assets amounted to around £275 million. They had married in Sweden but thereafter lived in England for 21 years. Just one day before the wedding, she and the husband had signed a pre-nuptial agreement which took out of the reckoning any wealth the husband subsequently acquired. She sought to escape from the agreement on the basis that she had not had legal advice before signing and, in particular, on the fact that the English courts would have  a discretion as to whether or not to take the contents of the agreement into account. The agreement had been brief, standard in Sweden and in Swedish. It complied with all the legal requirements which then existed in Sweden and the absence of legal advice for the wife would not have offended any Swedish court.

The judge who originally heard the case in England found that the wife knew full well the effect of the agreement and believed that it bound her. The Court of Appeal decided that she was stuck with it. It would have been binding in Sweden and it would be wrong to treat her as lacking a appreciation of the consequences of entering into the agreement merely because she had not received legal advice about the discretionary system here.

Versteegh v Versteegh [2018] EWCA Civ 1050

The Computer Says No. To Hell With That!

'If I hear any more about that b...dy  European General Data Protection Regulation, I shall tear the brains out of my laptop and spew them over the pavement.' Steady on. There is good news about one way in which the new law - it is in the Data Protection Act 2018 which worship the Regulation and vast chunks of it came into force on 25 May 2018- can help you.


If you now become subject to what the new law refers to as a 'significant decision made solely on automated processing' then you can challenge it. We are here looking at sole automated decisions such as on-line computer refusals of applications for a mortgage or other credit or on-line aptitude tests when you have applied for a job. Whoever you have applied to must tell you as soon as practicable and in writing that a solely automated decision has been made. Then you have up to one month from notification to ask for a reconsideration of that decision or, better still, a new decision not based solely on automation. That request should be acted on without undue delay but anyway within one month but, if necessary, the one month period can be extended for up to two months.

See Data Protection Act 2018 s 14 and General Data Protection Regulation articles 12(3) and 22(2)(b).


MasterCard Claim by Walter Merricks: Latest

I haven't forgotten that collective claim agsinst MasterCard. Nor, I suspect, have you. For the background see http://www.breakinglaw.co.uk/search/label/MasterCard%20claim

Walter Merricks who is bringing the claim is applying to the Court of Appeal for permission to appeal against the claim's dismissal and, alternatively, for permission to apply for judicial review of the decision to dismiss the claim. Both applications will be heard together at the Royal Courts of Justice in London on 31 October 2018. I will report back on the outcome.

Tuesday, 29 May 2018

Tenants Win Harassment Damages Case Against Housing Association

Has your housing association or council landlord (in fact, any landlord) gone over the top in threatening you with eviction or an injunction because of unjustified allegations? Metropolitan Housing Trust Ltd did just that towards two long standing assured tenants. The Court of Appeal has just thrown out an appeal by Metropolitan against a judgment in the tenants' favour for a total of nearly £5,000 damages. The judgment was based on Metropolitan's threats by letters over a period of time to take the tenants to court for possession of their respective homes and for an injunction because of alleged anti-social behaviour. The threats had been made without justification after a junior employee who was an estate manager had come onto the scene and got the wrong end of the stick. This was compounded by the fact that his managers had not scrutinised his work and supervised him as they should have done. Metropolitan had failed to take the most basic steps to ensure their allegations had a proper foundation. 

Harassment is both a criminal offence and can give rise to a civil claim for damages and an injunction. There's plenty on the subject and a draft court document you can adapt for a civil claim in my book, Breaking Law. To succeed with a civil claim as in this case, you need at least two acts (or conduct on one occasion towards two or more people) which amount to harassment. The perpetrator must know or should have known that what they did was harassment and the court will regard it as harassment if a reasonable person who had the same information as the perpetrator would have regarded it as harassment. Causing alarm or distress is not essential although the claim will be that much stronger if that was the result.

Courts will have in mind that irritations, annoyances, even a measure of upset, can arise at times in everybody's dealings with other people. It follows that conduct which is unattractive, even unreasonable, will probably not be enough to constitute harassment. The conduct needs to be oppressive and unacceptable as it was held to be in the recent case.

So whether the harassment is coming from your landlord, bank manager or former lover, tell them to read the judgment of the Court of Appeal in Worthington and another v Metropolitan Housing Trust Ltd [2018] EWCA Civ 1125 and put that in their pipe and smoke it.

Thursday, 10 May 2018

NHS Discrimination Against Whistleblowers: New Laws

Whistleblowers get new protection against discrimination by the NHS under new laws coming into force on 23 May 2018  in England, Wales and Scotland (see Employment Rights Act 1996 (NHS Recruitment-Protected Disclosure) Regulations 2018 SI 2018/579). From then it will be unlawful for NHS employers (well most of them) to refuse to take on an applicant for work or otherwise treat them less favourably than other applicants because they blew the whistle. This is whether the applicant is applying from inside or outside the NHS.


If the new law is broken then the applicant can apply to an employment tribunal or a civil court for compensation but not both unless the civil court proceedings are restricted to a claim for an injunction to prevent the NHS from further discrimination.


Wednesday, 9 May 2018

Complaining to BT. Good luck!

I have had my differences with BT before (see http://www.breakinglaw.co.uk/2017/07/bt-and-complaining-to-them.html). My recent complaint shows that tenacity, even when accompanied by the extraction of hair (mine), can pay off (albeit modestly). So, if you have a BT complaint, may the tenacity be with you. Incidentally, I generally favour a written exchange when complaining under a complaints procedure so that there is a proper record of what has passed and, obviously, so that you can see it afterwards. But initially I spoke to BT after a written summary of the complaint and it provided a transcript. I have saved you having to read this. The email exchange below has been edited by me to omit the boring minutiae.
BT 27/02/18
I have reviewed your complaint about the compensation for the fault you have had on your line, I am sincerely sorry for any inconvenience that this fault may have caused you and can understand that it is difficult to be without a working line .
I can understand from your previous conversation with my colleagues that you are not happy with the compensation offered to you which was 」16.40.
The refund is completely based on our Customer Service Guarantee Scheme(CSGS) policy The Customer Service Guarantee Scheme is BT compensation policy for when we are late providing or repairing service.

Me 01/03/18
It could not be more unhappy than I am with your response. It is based on a misstatement of the facts and indicates that you have not properly read my initial complaint.
BT was in breach of its duty in failing to correctly diagnose and remedy the fault when it was originally reported. I emphasise that I did not report ‘another fault’ on 13 January 2018 or any other occasion. I assume that BT carried out a test of its own initiative with a view to being able to cancel the engineer’s visit.
I trust you will now accurately and properly reassess the complaint and respond to me further in writing.

BT 05/03/18

If you are not happy with what we have offered you then there is nothing much I can do and will escalate this complaint further to our CRS (Complaints Review System) which will review your complaint from neutral point of view and get back to you on this within 5 working days, but I must inform you that they may withdraw the offer which I have made.

Please tell us if you are happy with the £16.40 refund offered to you or you wish to escalate further.

Me 06/03/18
Please provide me with the following information-
[5] why the fault was not remotely rectified when I first reported it having regard to the fact that it was remotely rectified on 17 January 2018
[6] whether you accept that the line was not functioning between 19 December 2017 and 17 January 2018
[7] why you consider that I should be charged for rental of the line between 19 December 2017 and 17 January 2018 when the line was not functioning
[8] why you consider that I should not be compensated for the loss of use of the line between 19 December 2017 and 17 January 2018.
Me 15/03/18

ARE YOU GOING TO REPLY TO ME AND PROGRESS MY COMPLAINT OR NOT, PLEASE?
Me 16/03/18
I have today received your letter dated 09 March 2018. One week to arrive. Did you forget to post it when you should have done?
The receipt of the letter and its contents surprise me (or perhaps they should not) for the following reasons- 
[A] You already know I am ‘unhappy’ with your last response.
[B] You already know that I have insisted on dealing with the matter through written communications.
[C] After a ludicrous refusal to deal with the escalation of my complaint in writing, you duly did so.
[D] You have totally ignored my e-mail of 06 March 2018 which I reproduce below.
May I suggest that somebody who holds a managerial role properly reads our trail of written communications, digests it and then  returns to me with a sensible response?


Me 02/04/18
IS ANYBODY THERE? ARE YOU GOING TO ATTEND TO MY COMPLAINT IN A SENSIBLE MANNER? DO I HAVE TO COMPLAIN ABOUT NON-ATTENTION TO A COMPLAINT?
Me 05/04/18
DON’T YOU RESPOND TO CUSTOMER COMPLAINTS ANY LONGER?
Me 08/04/18
Having persistently informed you that I was not prepared to discuss my complaint orally but only in writing (through email), what happened yesterday? You telephoned me to discuss the complaint!!! I reiterated my requirement whereupon your representative (whose identity is unknown to me) rapidly terminated the call.
Please escalate my complaint under your Customer Review System from which I hope I will get more sense than I have so far witnessed. 
BT 09/04/18
If you are not happy with what we have offered you then there is nothing much I can do and will escalate this complaint further to our CRS (Complaints Review System) which will review your complaint from neutral point of view and get back to you on this within 5 working days, but I must inform you that they may withdraw the offer which I have made.
Me 11/04/18
As already notified, I wish my complaint to be escalated. 

You telephoned me on 09 April 2018 in apparent response to my email protesting that you had been seeking to speak to me by telephone whereas I wanted this matter to be dealt with in writing!!!
BT 11/04/18
As per the fault reported we can refund £16.40 + £10 as goodwill maximum. If you are not happy with what we have offered you then there is nothing much I can do and will escalate this complaint further to our CRS (Complaints Review System) which will review your complaint from neutral point of view and get back to you on this within 5 working days, but I must inform you that they may withdraw the offer which I have made.
Me 11/04/18
If compensation is not offered to properly reflect the above heads of loss then the complaint must still be escalated.
Me 22/04/18
I have asked for my complaint to be escalated and not to be contacted about it by telephone but instead by way of email. 
On 16 April 2018 you wrote to me, effectively asking for more time to deal with my complaint.
On 18 April 2018 - having made more attempts to contact me by telephone which was in flagrant disregard of my request - you wrote to me again to express sorrow for the problems I was having with ‘the contract renewal’ - which is certainly news to me - and to say that if I was now happy, I need not do anything.
I am astounded by your level of incompetence. I really do not understand what you are playing at. It is evident that neither do you.
Come on now. Get your act together.
BT 223/04/18
Thank you for your email, I apologise it was not dealt with correctly.
I have reviewed your complaint in full and want to make the below points before we go any further.
In regards to faults BT will only compensate a customer from the date the contact us to let us know they are having issues and not before.
We would also have to go to the date we have on our system as the time the issues were resolved.
I appreciate you have advised us you only wanted emails and we continued to call, i apologise for this.
As a resolution then i will offer the credit of £16.40 plus a £20 goodwill credit for the delay in getting a written response.
If you are happy to accept please let me know by replying directly to this email, If not please give me a suitable time that a manager can contact you via phone.
Me 26/04/18
I refer to your message of 23 April 2018. I will accept £20 for delay in getting a written response. As to the £16.40 offered, I do not accept this because I do not understand the basis of the calculation. As I understand it, the sum relates to line rental. Would you please clarify the precise period for which it has been calculated. It should be for not less than the period beginning with the date of my notification of fault and ending with the date on which you informed me the fault had been notified.
I do not wish to discuss by telephone. I think I have made this clear more than once, have I not?
BT 26/04/18
The date we have the first fault reported on was the 19/12/17.
We then have another fault showing fault was cleared on 19/01/18.
Going by these dates the total refund for the 31 days would be 19.62.
The 16.40 you were offered before took into consideration that BT have 3 days to fix faults and as there was 2 separate faults raised it took 6 days off the credit.
Mew 26/04/18
Thank you.
As I have pointed out before, there was only one fault reported. Your records in this respect (as well as several other respects) are incorrect. The one and only original fault complaint was not properly diagnosed and so an engineer’s appointment had to be booked. Before that appointment the fault was externally rectified as should have happened at the outset. Therefore, the £16.40 offered should be revised to add back three days line rental. If this is done and you will pay me the £20 for delay in written response plus the £20 already offered as a goodwill gesture (which had nothing to do with delay in response) I will settle on that basis.£56.40 in all. What a debacle!
BT 26/04/18
I will offer the below as final resolution -
£19.62 for the duration of the complete fault.
£25 in total goodwill as an apology for the delay in getting this sorted.
Total credit - £44.62
Me 26/04/18

I consider your offer to be too low, given that you had previously proposed a goodwill payment before that  attributable to the delay of £20. But with a view to concluding this matter, I am prepared — without prejudice - to split the difference and settle for £32.50 plus £19.62, namely £52.12.
BT 01 May 201
The credits have been applied to your BT Account.
Thanks for giving me the opportunity to resolve this for you.
Are you happy for me now to close your complaint?
Me 01 May 2018

Good Morning
If the account credit is for £52.12 then I can confirm that you may close my complaint. 
May I wish your phone line the best of health and extend to you my earnest hope that you never have to complain to BT.

















Sunday, 6 May 2018

Fancy A Divorce?Then Go Online And Click Away !

They have been trying out allowing some of you after a divorce to be able to start the process online and to pay the court fee online (see http://www.breakinglaw.co.uk/2017/09/divorce-on-line.html). They have been happy with the results of the trials and so, last week, the online facility was opened up to everyone in England and Wales. It will not yet be available to solicitors who are acting for divorce petitioners but only to petitioners doing it for themselves. Solicitors will be brought in soon but, for the time being, litigants in person are in a favoured position. In due course, the whole divorce process will be capable of management on line so long as the case is undefended.

The online case will be handled at one of four of the regional divorce centres based in Nottingham, Stoke (despite their relegation from the Premier League), Liverpool and Southampton and the court fee will be the same online as off line: that's £550 unless you successfully ask for the fee to be remitted because you are on benefits or otherwise down and out. You start off online by going to https://www.gov.uk/apply-for-divorce.

Todays' Sunday Times carried a muddled explanation of the divorce process. It won't be necessary for an account to be given of 'wealth and income' or 'arrangements for the children' as suggested in order to procure the divorce. Those subjects will come alive if and only if there is an application by one party for a financial remedy such as maintenance or there are proceedings under the Children Act 1989 about the welfare of the children. Financial applications might possibly lead to the final divorce decree - the decree absolute - being delayed but children issues will not do so. You can't start the divorce process until you have been married for at least one year. There have been some cases where divorce cases have been started before the first year was up and decrees have been obtained. These decrees are nullities as will be any remarriage which has taken place on the strength of them. Fresh proceedings will be needed to put the situation right.

Say your husband or wife want to defend the case? No change in the law there but on 17 May 2018 the Supreme Court is due to consider what conduct should be necessary to establish that you spouse has been guilty of unreasonable behaviour which is one of the divorce grounds. I've looked at the case with you in an earlier blog (see http://www.breakinglaw.co.uk/2017/08/will-wife-gain-freedom-from-marriage.html). You can watch the hearing online on the day but the Supreme Court's decision is likely to be  announced  subsequently after the judges have pondered their decision over their fish and chips and pickled onions.

Plenty on divorce and how to tackle financial remedy applications for both sides in my book Breaking Law.



Thursday, 3 May 2018

There's A Poisonous Fly In My Soup: Second Course


The new regime for making a package travel claim and for restricting legal costs that can be recovered by a successful claimant which travel operators had been begging for comes into force on 7 May 2018 (seehttp://www.breakinglaw.co.uk/2018/04/theres-poisonous-fly-in-my-soup-update.html).
I had suggested that the pre-action protocol which should be followed could do with clarification as to whether or not it applied to small claims. The protocol has just been amended to give that clarification. The protocol will not apply to small claims. We are here talking about claims for compensation for personal injury and loss of amenities for up to £1,000.

Package Holidays: Don't Book Early

The law protecting holidaymakers in the Package Travel, Package Holiday and Package Tours Regulations 1992 (if you don't get the package you were promised the likelihood is that the travel company will be liable to you even though third parties may be at fault) is set to change for agreements made on or after 1 July 2018. It may benefit you to postpone your booking until then. The new law will follow a European directive issued in 2015 and will be contained in the Package Travel and Linked Travel Arrangements Regulations which have been published in draft form. The government's deadline for implementation of the directive is....1 July 2018.


A great deal of the current law will be repeated in the new law. But here are some of the valuable changes.


  • More package holidays will be covered. Definitely 'in' will be holidays which these days are often purchased on line where separate contracts under the package are made with different travel service providers and you customise exactly what you want later on in a bespoke product. So-called 'linked travel arrangements' which are looser combinations of travel arrangements are also caught where a trader organises the making of separate contracts for travel services with different providers.
  • More package organisers will be liable when the regulations are breached. For example, more so-called Flight-Plus holidays are likely to be covered. 
  • There's a cap on any attempt to increase the price of the package by more than 8% after you have made your contract. Any increase, be it 8% or less, must be notified with justification for it at least 20 days before the holiday. Where the increase is over 8% you will be entitled to get out of the contract and without any charge for the privilege of doing so.
  • Where getting you home is delayed because of unavoidable and extraordinary circumstances, the organiser must  provide you with free accommodation, if possible to an equivalent standard to that you should have enjoyed in the package, for up to three nights. The three nights limit will not apply if you have reduced mobility when flying or are accompanying someone with reduced mobility, are a pregnant woman or an unaccompanied minor or are in need of specific medical assistance, and this was notified to the organiser at least 48 hours before the holiday.