Monday, 24 June 2019

Alive But Missing: New Law

The Guardianship (Missing Persons) Act 2017 will come into force in England and Wales on 31 July 2019. It's taken a bit of time for this to happen after it was passed. I had considered reporting it as a missing piece of legislation.

The Act fills a gap in the law. If a person is missing for seven years then it may be possible to get the court to make an order that they are presumed to be dead. This then enables their affairs to be wound up as though their corpse had been found.

But say they're been missing for less than seven years or the evidence suggests that they are still alive, no matter how long they have not been heard of? This is where the new Act gets going. It will enable an adult to apply to the High Court to be appointed as their guardian and so administer their affairs. The application could be made by their spouse or civil partner or, with the court's permission, another relative or even a friend. If granted, the guardian would be able to access funds in the missing person's bank account, pay the mortgage instalments on their home or pay themselves maintenance, cancel a subscription to Playboy and do a myriad of other things in their best interests.

Before appointing a guardian the High Court will need to be satisfied that the person has been missing for at least the previous 90 days and that the appointment of a guardian is in the missing person's best interests. In urgent cases, the court will have a discretion to appoint a guardian even when the absence has been less than 90 days.

The court is likely to look for evidence from the police that the person has been reported to them as missing and to want to know the outcome of the police enquiries.

A code of or practice and procedural court rules dealing with these case are awaited.

If your marriage or civil partnership is a bit rocky, better not go on a prolonged holiday, eh?!

Sunday, 23 June 2019

Divorce Reform Latest


For the story so far, see -

The proposed changes to matrimonial law are contained in the swingingly entitled Divorce, Dissolution and Separation Bill which is due to receive its second reading in the Commons next Tuesday 25 June 2019. 

A couple of surprises (to me, at least). Generally, if one of the parties to a marriage or civil partnership states in court papers that the marriage or civil partnership has irretrievably broken down, that will be accepted by the court as conclusive evidence that - it has irretrievably broken down. On the face if it, then, no chance for the other party to defend the case on the basis that, for example, 'She kissed me on the lips this morning and suggested we go on a second honeymoon'. My guess is that this provision will be attacked during the Bill's parliamentary passage.

And there will be the opportunity for the other party to the proceedings to block the finalising of the second decree - we call it the decree absolute at the moment -  so that the court can consider whether any financial provision for that party made by the party after their freedom from the relationship, is reasonable enough. Under the current law, this opportunity exits but only where the divorce or partnership dissolution is going ahead on the basis of separation (two years' with consent or five years even without consent).

I'll keep you posted.

Friday, 7 June 2019

Mastercard Collective Claim: Very Latest

For plastic background, see -http://www.breakinglaw.co.uk/search/label/MasterCard%20claim

Mastercard has requested permission from the Supreme Court to appeal to it against the Court of Appeal's ruling in favour of Walter Merricks. The request will be considered by Supreme Court Justices on the papers and their decision is expected before the end of July 2019.

Friday, 31 May 2019

New Section 21 Notice from 1 June 2019

Calling all landlords. The prescribed assured shorthold two months' (at least) notice under section 21 of the Housing Act 1988 changes for England TOMORROW  01 June 2019. Use the current form at your peril. Calling all tenants. If your landlord gives you an out of date notice on or after 01 June 2019, it may be invalid and you should obtain professional advice on it if you are resistant to having to go.

It's the prescribed  form 6A I am on about and it is amended by  the Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment) Regulations 2019 (SI 2019/915). But the prescribed form is not mandatory, although it can be used, for assured shortholds created before 1 October 2015 or statutory periodic tenancies which have come into being on or after 1 October 2015 at the end of fixed terms created before 1 October 2015. Phew!

The amended  form is inspired by the Tenant Fees Act 2019 which also comes fully into force on 01 June 2019 (see http://www.breakinglaw.co.uk/2019/05/big-new-tenancy-laws-tenants-rejoice.html). It draws the tenant’s attention to the fact that section 17 of the 2019 Act prevents the landlord from serving a section 21 notice so long as all or part of a prohibited payment or unlawfully withheld deposit has not been repaid. There’s also new guidance to the tenant on homelessness support services. And the tenant’s attention is now directed in a more helpful way to the paralysis inflicted on the landlord in serving a s 21 notice where a house in multiple occupation (HMO) is unlicensed.

For much more on landlord and tenant law, treat yourself to my book Breaking Law (there he goes again). You know it makes sense.

Sunday, 12 May 2019

Big New Tenancy Laws : Tenants Rejoice, Landlords Weep

01 June 2019 it's happening. The Tenant Fees Act 2019 then comes into force. For all assured shorthold flat and house lettings in England on or after that date, brand new laws will strengthen tenant rights and will make landlords wonder whether they would better off investing in coffee shops or public conveniences. Student lettings and licences are covered too: not social landlord lettings so local authority and housing association lets are out. And as from 01 June 2020, what's banned under new lettings will become banned under lettings before 01 June 2019.

What is banned then?
  • A security deposit (to cover damage to the property or any default in the payment of rent, for example) for more than five weeks' rent or six weeks' rent if you are a Premier  Division footballer and will be paying an annual rent of £50,000 or more. These deposits for assured shorthand tenancies must still be protected with an approved scheme, as at present.
  • A reservation deposit ('We'll hold the place for you but it has attracted an enormous amount of interest and, in fact, I have an appointment with 12 couples this evening, all of whom are bursting to take it.') for more than one week's rent.  But in certain situations the deposit must be returned to the tenant. They generally include where a tenancy agreement is entered into; where no agreement is reached within 14 days; or where the landlord  has asked for a banned fee or wants the tenant to agree to an unreasonable condition.
  • A fee so that you can have the privilege of viewing the property.
  • A tenancy set up fee.
  • An inventory check fee at the start or end of the tenancy.
  • A fee for having to replace a lost key unless it was reasonably incurred and you are shown the relevant invoice.
  • An interest or other charge for the late payment of rent where the rent is less than   a fortnight overdue and, where a fortnight overdue, any interest payment exceeding 3% over base rate is prohibited.
  • A charge for transferring the tenancy at the  tenant's request which is higher than  a reasonable amount but, in any event, no more than £50.
  • Charging the tenant any more than the landlord's actual loss where the tenant wants to go before the end of a fixed tenancy or without giving notice.
  • A fee for professional cleaning of the property at the end of the tenancy (but the tenant can be charged for cleaning which was necessary for breach of a tenancy agreement not to turn the place into rubbish tip).
If an amount over a maximum figure is required then it is the excess that is treated as banned and irrecoverable. So long as the charge is not banned by the new law, a clause in the tenancy agreement which entitles the landlord to be compensated for breach of the tenancy is ok ( for example, having to pay up for damaging the property).

A landlord who breaks the new law can be prosecuted by trading standards or fined up to £30,000. The landlord can appeal against a fine to the first tier tribunal. A tenant whose banned fee or holding deposit has not been returned will be able to get it back either through a trading standards demand of the landlord or the county court, depending on whether or not there has been a prosecution. Trading standards should help.

So long as the landlord has not returned a banned fee or a holding deposit which broke the law, they cannot give the tenant notice they want them out under section 21 of the Housing Act 1988 which is the two month job for assured shorthold agreements.

As for pre-1 June 2019 tenancy agreements, from 01 June 2020, a fee which would be banned for new agreements will then be banned for the old agreements (but not before then). That means the tenant will not be liable to make payment on or after 01 June 2010 but will be entitled to repayment of any banned sum paid over on 0r after 01 June 2020. So the landlord can collect up to 1 June 2020. If they collect after then, the payment is a banned payment and unless the landlord returns it within 28 days they can be dealt with in the same way as post-01 June 2019 landlords. Excessive security deposits and holding deposits are not affected. 

For usch more on landlord and tenant law, indulge yourself in my book Breaking Law.



Wednesday, 17 April 2019

Landlord Traps and Tenant Delights on Forfeiture: 2 New Cases

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

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

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






Tuesday, 16 April 2019

MasterCard Claim by Walter Merricks: Appeal Result

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

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

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

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

Wednesday, 10 April 2019

New Divorce Laws Explained: Pounce or Wait?

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

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

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

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

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

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

Happy times.

Wednesday, 27 March 2019

Minimum Wage Up

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

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

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

Tuesday, 12 March 2019

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

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

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

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

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

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


Sunday, 10 March 2019

New Civil Procedural Rules: MORE!

I've provided you with the first dose of the new civil procedural rules coming into force next month. Please digest http://www.breakinglaw.co.uk/2019/03/new-civil-procedural-rules-open.html with a glass of cold water but not on an empty stomach. Here's some more to be taken with your evening meal.

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

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


Tuesday, 5 March 2019

Waitrose Car Park Lost Ticket Charge: £25 Avoided!

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

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

Me to Waitrose on 05 February 2019 by e-mail

THE EMAIL BELOW WAS TRANSMITTED TO YOU ON 01/02/19 AT 1649 AT EXECUTIVE TEAM@WAITROSE.CO.UK AND HAS NOT BEEN ACKNOWLEDGED. PLEASE ACKNOWLEDGE.
STEPHEN GOLD

Me to Waitrose on 11 February 2019 by e-mail
IS ANYBODY THERE OR HAS WAITROSE’S COMPLAINTS DEPARTMENT CEASED TO EXIST?  MY TWO EMAILS OF COMPLAINT BELOW HAVE BEEN IGNORED SO FAR.
STEPHEN GOLD

Me To Waitrose on 16 February 2019 by e-mail
FOURTH ATTEMPT AT SECURING AN ACKNOWLEDGMENT OR, BETTER  STILL, A DEFINITIVE REPLY. SO FAR, NOT A PEEP OUT OF YOU.

STEPHEN GOLD

Me To Waitrose on   February 2019 by post
Chief Executive

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

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

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

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

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

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

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

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

_______________________________________________________________

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

Monday, 4 March 2019

New Civil Procedural Rules: Open Hearings & Copying in Opponent on Communications with Court

New procedural rules are coming into force next month for civil court cases in England and Wales. You'll find them in the Civil Procedure (Amendment) Rules 2019 SI 2019/342 and practice directions made under the Civil Procedure Rules 1998. Chapter and verse of the practice directions can be found  at https://www.justice.gov.uk/courts/procedure-rules/civil or, if you prefer a quiet life and are not averse to a bit of cheek here and an insult there, stick around and allow me to guide you through the more important changes, especially if you are without a lawyer, in the coming weeks.

Hearings  - including those by telephone and video - are opening up. As from 6 April 2019, cases which are currently now heard in private at court - so no media, no members of the public resting their feet between Primark and Tesco, no nosey neighbours -  will be open to all and sundry. This will include claims for repossession of homes by mortgage lenders, claims for repossession of homes by landlords on account of rent arrears and enforcement applications for such things as charging orders and third party debt orders, all of which now start off and almost invariably continue as being in private. But a party to the proceedings can ask for the hearing to be in private although it will initially be listed to be in public. The court must allow privacy if, for example, the court decides this to be necessary in the interests of justice or the hearing involves confidential information and publicity would damage it. The court is also given power to order that the identity of a party to the case or a witness should not be disclosed if that is necessary in order to secure the proper administration of justice (sounds very grand) and protect their interests. Where the court orders that a hearing should become private or a party or witness should not be  identified, then its order must be published at www,judiciary.uk and someone who is not a party to the proceedings (perhaps the editor of the Daily Mail!) can apply to attend the hearing and make submissions or apply to cancel the order.

An important scheme is introduced about communications to the court.  They're trying to put an end to one party writing to the court slagging off the other party but without supplying a copy of the communication to that other party. It happens a lot. It's going to stop. As from 6 April 2019, any communication  which contains reference to some matter of substance or procedure must be disclosed to the other side and the court told this has been done. Otherwise, the communication will be bounced back by the court and where there is a serious breach of the scheme or there are repetitive breaches, the court could impose a severe sanction against the sender like striking out their claim or defence. But this will not apply to communications that are routine, uncontentious and administrative (like 'Here's my court fee.') And it will also not apply if there is a compelling reason for withholding a copy of the communication from the other side and that reason is explained to the court in the communication. The court won't be lightly satisfied that a compelling reason really does exist.

More to follow.

Monday, 25 February 2019

Higher Compensation Limits For Workers

The compensation that an employment tribunal can award you if you have been unfairly thrown out of your job or the been the victim of a multitude of other sins which are open to employers to commit, is reviewed annually in line with the retail prices index. The latest review has been converted into new legislation - the Employment Rights (Increase of Limits) Order 2019 SI 2019/324 - which will raise the compensation limits by 3.3%. So hold on boss, wait a few more weeks before transgressing, will you? Please!

The new limits will only apply when the dismissal or whatever the employer has wrongfully done occurs on a defined date on or after 6 April 2019. That date will vary according to the nature of the sin. For an unfair dismissal or redundancy where notice is given, for example, the new limits will apply if the notice to terminate expires on or after 6 April 2019. If no notice has been given, the new limits will apply if the date termination is to take effect occurs on or after 6 April 2019.

What are the new limits? For the amount of pay taken into account to calculate a redundancy payment or the basic and additional unfair dismissal awards - it's what is know as 'one week's pay' - the figure will be a maximum of £525 instead of £508. For the unfair dismissal compensatory award , a fat £86,444 maximum will be collectible instead of £83,682.

Monday, 11 February 2019

New Rights For Workers

Here's the countdown to new workers' rights brought to you by courtesy of the swingingly entitled Employment Rights (Employment Particulars and Paid Leave ) (Amendment) Regulations 2018 (SI 2018/1378) and the Employment Rights (Miscellaneous Amendments) Regulations 2019 (which await being signed off).

06 April 2019    The maximum penalty for aggravated breach of a worker's employment rights under s12A of the Employment Tribunals Act 1966 will generally increase from £5,000 to £20,000.

06 April 2020    One year plus to go so be patient. Workers engaged on or after this date will be entitled to a statement of the particulars of their work even though they are not employees. There will be no minimum qualifying period of work in order to be entitled to be given the statement. The current qualifying period for employees is one month. The statement containing the principal work conditions  will have to be provided at the commencement of work. The remainder can be given in instalments but within two months of commencement of work. Added to the particulars currently needed will be the days of the week to be worked, whether the are variable and, if so, how the variations are to be decided and any probationary period which is to be suffered with its conditions and duration. There are special provisions relating to workers who are already in post before 06 April 2020. And the reference period for calculating holiday pay will increase from 12 to 52 weeks. This will knock out the trick of clocking up as much overtime as possible during the current 12 weeks  which are taken to calculate earnings and thereby increasing holiday pay and causing considerable resentment among workmates.

Sunday, 10 February 2019

Major Flight Delay Court of Appeal Ruling

Airlines will escape having to pay flight delay compensation - the delay must be for at least three hours - if they can prove the delay was down to an extraordinary circumstance.  If it was down to an air traffic management decision such as the suspension of flights due to thunderstorms, is that legally due to an extraordinary circumstance?

In Daniel Blanche v Easy Jet Airline Co Ltd [2019] EWCA Civ 69, the airline maintained that thunderstorms did amount to an extraordinary circumstance. The passenger who was held up for five hours 42 minutes argued that it was not an extraordinary circumstance and that regard should be had to the underlying reason for the delay. There was nothing exceptional about thunderstorms!

Last Wednesday 06 February 2019, the Court of Appeal ruled that the airline was right and the passenger was wrong. The air traffic management decision amounted to an extraordinary circumstance so that the claim had to fail.

So whatever the underlying cause of the delay in your case, if air traffic control has prevented the flight from departing, I'm afraid you've had it.  

Tuesday, 5 February 2019

Credit Card Debts: How Long Does Creditor Have To Sue?

If you owe money, your creditor generally has six years within which to sue you (see chapter 10 of my book Breaking Law). After that, you are usually off the hook and have a good defence to any claim they start against you in court; the You Are Too Late, Mate, Defence.

Here is the conundrum. With a credit card debt, from when does the clock start ticking - from when you default with payments or from when you  subsequently fail to comply with a written default notice which the creditor must send you before taking you to court? 

The conundrum has just been solved by the Court of Appeal in Doyle v PRA Group (UK) Ltd [2019] EWCA Civ 12 where the cardholder was said to owe over £26,000. It was ruled in that case that the six years starts  from the later date. That's when you fail to comply with the default notice. 

But say you creditor waits for an eternity after you have defaulted with payments before sending out the default notice. That could lead to you being prejudiced and having a court  claim form come hurtling through your letterbox many years later when you had thought the debt had gone away. In that situation, you might be able to get the debt wiped out or reduced by asking the court to exercise its 'unfair relationship' powers under sections 140A and 140B of the Consumer Credit Act 1974.


Friday, 1 February 2019

Escaping Taxman's Penalty For Non-Payment

The taxman has won an appeal case.* You may think I have lost my marbles in telling you about it. My marbles are intact. I am telling you about it because it highlights how the defence of 'reasonable excuse' can get you off having to pay tax penalties not only for failing to get your return in on time but  for failing to pay on time the tax you have been assessed to pay. And by the way, yesterday 31 January 2019 was the deadline for settling your self-employed tax assessment. What do you mean, you forgot?!

Leading barrister Timothy Raggatt QC was stung for late payment penalties relating to two tax years which totalled nearly £13,500. He appealed to the first tier tribunal of the tax chamber (as one does) and lost. So he appealed again to the upper tribunal (as one does) and has just lost. He was represented by Timothy Raggatt QC (as one would be as it tends to keep legal fees down). 

Mr Raggatt's argument was that he had a 'reasonable excuse' for late payment. This, he said, was that events out of his control had prevented him from paying on time. He principally relied on the substantial reduction in his income from the cuts in the legal aid budget and his bank's refusal to increase his overdraft facility. 

Now, to succeed with a defence of 'reasonable excuse' you have to show that you exercised reasonable foresight and due diligence and a proper regard to the fact that the tax liabilities concerned would become due on particular dates. The Finance Act 2009  (go to paragraph 16 of the 56th schedule if you must and you can bear it) states that an insufficiency of funds is not a 'reasonable excuse' unless it is attributable to events outside the taxpayer's (or tax non-payer's!) control and that if you rely on any other person to do something, you must have taken reasonable care to avoid their failure to do so. 

Both tribunals had considerable sympathy for Mr Raggatt's predicament (a fat lot of use that was!) but, as it was put on this latest appeal, he could have done more to have avoided that position.

What was made clear by the upper tribunal - and this may be of help to you- is that the principles relating to 'reasonable excuse' are the same in late return penalty and late payment penalty cases. There was no legal requirement on the part of a self-employed professional person to reserve for their  tax liabilities but a person with such an episodic life as Mr Raggatt would be well advised to take reasonable steps to make some provision for tax liabilities or to ensure that they had appropriate bank facilities to meet their expected tax liabilities if they subsequently wished to plead a 'reasonable excuse'.  Taking such reasonable steps might not end up enabling a taxpayer to deal with unforeseen events but if it appeared they had done all that could be reasonably expected of someone in their position then the defence of 'reasonable excuse' might be a winner.

*Raggatt v Commissioners for HMR&C [2018] UKUT 412 (TCC)

Friday, 25 January 2019

A night out with Stephen Gold? How very dare you! Chapter 25 – Compensation for Hassle and Mental Distress

There have been loads of decided cases on the subject of when and whether you can claim for the hassle and metal anguish caused by your predicament. Many of them contradictory. The law could even change with a decision of the Supreme Court.

But what I recommend is that you ensure it is not your case that goes there as that could be expensive. Instead the county court and High Court are likely to deal with any claim by (or against) you by applying the general principles set out in Chapter 25.

* Do check posts on this blog for any legal developments since this chapter was originally published.

NOTE: This is the last extract we'll be publishing for now. Hope you have been helped by and enjoyed the free extracts of Breaking Law we have brought you over the past two months. We will be treating you to some more from time to time in the future. If you would care to buy my book (this Gold bloke has a nerve, hasn’t he?) as your own doorstop or as a gift for a family member or friend who is need of advice or can be expected to be in some sort of legal trouble in the very near future, then please don’t be shy to do so.

The chapters you haven’t seen cover the delights of bankruptcy, divorce, mortgage problems, shopping disputes and much more.

Tuesday, 22 January 2019

Online Probate: New DIY system

If you are  personally handling the winding up of a deceased's person's affairs as their executor then you can now apply online for the grant of probate (see https://www.gov.uk/wills-probate-inheritance/applying-for-a-grant-of-representation). The online trial which I previously reported on (see http://www.breakinglaw.co.uk/search/label/probate) has just been extended. You should find the process relatively straightforward. This applies where the deceased lived in England and Wales. But the online system will not presently cover applications for a grant of letters of administration which is the law's answer to probate where the deceased did not leave a will. For who gets what with no will and who can claim if they have been left out under the will or the intestacy laws which are triggered by no will, see that excellent book Breaking Law by 'erm - me!

Fees for applying for probate are set to be increased next April so don't hang about in making a probate application. Most certainly, don't kill anyone off to save on fees.

Waitrose's Richmond Lifts: LATEST

I have to report that the smallest of the trio of lifts at Waitrose's Richmond-upon-Thames  store (that's the one next to the larger lift which believes it is coming down when in fact it is going up - see http://www.breakinglaw.co.uk/search/label/Waitrose) has been out of action. This follows a customer being stuck in the lift last Friday when I just happened to be on patrol.

I thought you should know.

Thursday, 17 January 2019

Taxman Loses Another Case

Here we go again. Last week HMRC lost a further appeal case before the tax chamber's first tier tribunal.

In Pantelli v Commissioners for Her Majesty's Revenue & Customs [2019] 1 WLUK 42 Mr George Pantelli was appealing against penalties imposed for the late filing of his self-assessment tax returns for two years. But before the obligation to file a self-assessment return can legally arise, the taxpayer must be sent a notice by the Revenue requiring that to be done (section 8 of the Taxes Management Act 1970). No notice, no penalty.

Mr Pantelli claimed that he had not been sent the requisite notice for either tax year. In order to defeat that argument, the Revenue had to prove that it was more probable than not that it gave the notice to him. Adequate evidence of this, held the tribunal judge, was a necessity and not a luxury. However, the Revenue failed in this appeal to produce any witness evidence that the notice had been given. That being so, Mr Pantelli's appeal succeeded and the penalties were quashed.

For other recent decisions on penalties and challenging the Revenue, see  http://www.breakinglaw.co.uk/search/label/tax%20appeals

Tuesday, 15 January 2019

And now for something completely interesting: Chapter 24 - Interest on Debt, Compensation and judgments

What does you savings account pay at the moment? 0.5%? 1.5% if you're lucky and don't need the money now to pay for the Xmas excesses? So it might be a bit of a shock to find out that if someone owes you money under judgment you might be able to charge them 8% interest on what they owe. You read that right 8% (thanks to a law that came into force in 1993 and has not been changed since).

As ever there are rules and exceptions but this type of interest can add up to a tidy sum so find out when this can apply and how to get the interest due in Chapter 24.

* Do check posts on this blog for any legal developments since this chapter was originally published.


Tax Penalties Quashed: Latest Appeal Cases

They tell me that 31 January 2019 is near. Penalty time if you don't get your online tax return in by then. You can appeal against all sorts of tax penalties which should not have been imposed. The appeal success rate looks to be pretty reasonable. You will find details of successes at http://www.breakinglaw.co.uk/search/label/tax%20penalties

Here are two of the latest taxpayer wins.

In Redman v Commissioners for HMRC Appeal number TC/2017/07240 the first-tier tribunal of the tax chamber cancelled penalties of £97,821 for two tax years which had stunned an evangelical Christian who earns his living as a singer/songwriter and musician and for a period of time had been non-resident here while working in the USA. When his accountant came to file his late tax returns for two years subsequent to his return to the UK,  the accountant found he was unable to do so because Mr Redman had been removed from the self-employed system. Trouble is that HMRC had failed to notify that fact to him or his accountant. Nevertheless, HMRC asserted that Mr Redman had breached section 7 of the Taxes Management Act 1970 by deliberately not giving notice of his liability to be charged up for tax in relation to those two years. 

The Tribunal decided that the failure to notify could not have been deliberate because neither Mr Redman nor his accountant had been notified that Mr Redman had been taken out of the self-employed system. It also decided that was a reasonable excuse for non-notification. So, no deliberate default and no carelessness.

Over to Advantage Business Finance Ltd v Commissioners for HMRC [2019] UKFTT 30 (TC) where daily penalties of £900 were cancelled by the Tribunal for a late Annual Tax on Enveloped Dwellings return (pretty obscure, I know). The reason? The law required HMRC to notify the taxpayer of the date from which the penalty was payable. It did so but only after the end of the penalty period. Too late.

Happy Returns to you!

Monday, 14 January 2019

New CPR Updates: Boring

I'll be frank with you. Unless you are a lawyer, enjoy watching paint dry, are asked to participate in a digital pilot scheme for small claims or just plain crazy, this post will bore the screen off your television set. Even if you fall into one of those categories, you may want your money back for reading the post. Oh, I forgot. You get this for nothing (but you could always buy my book, out of shame).

This is about updates to the Civil Procedure Rules 1998 number 102 which came into force on 01 January 2019 before you got up and 103 which came into force today (14 January 2019).

Update 102 brought in a capped costs scheme for cases with a value of up to £250,000 in proceedings in the London Circuit Commercial Court and the Business and Property Courts based in Leeds and Manchester, there covering Chancery, Circuit Commercial and Technology and Construction Court business. The scheme is voluntary and will run for two years.

Update 103 extends the scope of the pilot scheme for online civil money claims for less than £10,000 which is open only to litigants in person. 

I told you! I told you!

The Bailiff Strikes!: Chapter 23 - Execution

This one is for those of you on the wrong end of a visit from a bailiff. There are strict rules that the unwelcome visitors have to abide by: they can't just come in and take everything you own and their paperwork has to be shipshape. Knowing what those rules are may give you some changes to delay things so you have more time to get your house in order so in this Chapter I've explained what they are in all their glory.

* Do check posts on this blog for any legal developments since this chapter was originally published.


Sunday, 13 January 2019

Can't Pay, Won't Pay: Chapter 22 - Getting your money under a Judgment

Winning in court might well be the easy part. Before you celebrate at the Fat Duck you'll need to get the money you are owed and that can take some time and perhaps some perseverance. Choosing the best option to enforce payment from a reluctant opponent is vital so I've explained them all in Chapter 22.

Along the way I've also set out some words of wisdom that can take the heat off if you are the one being chased by your creditors.

* Do check posts on this blog for any legal developments since this chapter was originally published.

Saturday, 12 January 2019

Waitrose Regrets - Again And Again

Regulars will be aware that things have not gone too well for me when visiting Waitrose at Richmond-upon-Thames (http://www.breakinglaw.co.uk/search/label/Waitrose gives some examples).

I don't want to be hard on them but they do seem to have trouble with rectifying problems. I have to tell you about my outing to the store the other day. Here's my email exchange with Waitrose. They certainly know how to say sorry. Perhaps they could learn how to put things right.

FROM: STEPHEN GOLD
TO: WAITROSE CUSTOMER SERVICE
09 January 2019   17.08

Hello Again and a Happy New Year

I thought you would like to hear of my experiences at your Richmond-upon-Thames store this afternoon in  a space of 59 minutes. Here goes.

1 The cashier on the till at the far end of the store was again without a stamp machine with which to impress my car park ticket to indicate I had spent at least £10. This particular till has suffered from stamp machine starvation for several years. A machine did mysteriously appear at the till about six months ago which presumably explained why the cashier was smiling but I believe the appearance was short lived. This is a matter to which I drew your attention on 06 June 2018.

2 My car park ticket (once stamped by an adjoining cashier) was rejected by both ticket machines which, from the message displayed, seemed to think it was a credit card. 

3 I had to wait for approximately ten minutes at the customer services desk in order to report the ticket rejection and  to be given the magic word to be announced when attempting to leave the car park without having first successfully patronised the ticket machine.

4 According your automated announcement,  the middle car park lift with me ascending therein was, in fact, descending. The fact that this lift does not appear to know whether it is going up or coming down was a matter to which I have twice drawn your attention, namely on 29 July 2018 and previously. You were having the problem solved.

Should you like my unpaid assistance in tackling the above problems then do please let me know. I hope that you manage to get out of your office at the end of your shift and that your chair does not collapse in the meantime.

Regards
Stephen Gold


FROM: WAITROSE CUSTOMER SERVICE
TO: STEPHEN GOLD
11 January 2019   08.25

Dear Mr Gold


Thanks for taking the time to contact us and share your experiences of our Richmond store. 
It’s disappointing to hear of the issues you encountered, and we appreciate you bringing this to our attention. 
 Our Branch Management team try to ensure that any maintenance issues are actioned as quickly and efficiently as possible, to minimise any frustration our customers may experience. I’m sorry for the trouble you were faced with and the service you received - the Branch Management team will follow this up with the maintenance team and Partners working at the time. 
If you have any concerns or observations in future, please don’t hesitate to ask to speak to the Duty Manager, so they can discuss this with you at the time.
I’m sorry for the disappointing experience that you had and I hope we can welcome you back soon. 
I hope this has resolved your query, please let me know if it hasn't.  If you'd like to comment on the service I've given you, click 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 Waitrose & Partners gift vouchers.

Kind regards 
Simon 
Waitrose & Partners Customer Care