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

Wednesday, 9 January 2019

Complaints? I have had a few but then again too few to mention: Chapter 21 - Challenging the Judge's Decision

Don't like the end result? Then you have the options to complain or appeal though the latter is the one to pursue if you think the judge has come to the wrong conclusions. Both routes explained here and also some essential insights on when and how to appeal.


Tuesday, 8 January 2019

The Ugly Face of Proceedings: Chapter 20 - The Register of Judgments

So you have been sued and found to owe some money. You'd rather not compound the misery by having that fact available for all to see yet that's what can happen through the Register of Judgments.

I have some neat tricks to help you avoid that fate as set out in Chapter 20.


Monday, 7 January 2019

Kissing & Making Up: Chapter 19 - The Tomlin Order

In every area of law you will come across something named after either the poor person who's case had the misfortune to give birth to it or the smart Alec judge who came up with it. In our case it is the Tomlin Order, named in honour of Mr Justice Tomlin who first used one in the case of Dashwood v Dashwood.

It's a form of order that helps you kiss and make up after proceedings have started but leaving you wriggle room to turn heavy again if the other side fails to honour the bargain. Chapter 19 gives the words you need to put this into action.

Sunday, 6 January 2019

Small is beautiful: Chapter 18 - Small Claims

Up to £10,000 is a small claim? While it may be riches to you, it is small in the legal world and the rules are simplified to make it easier for you to make your claim. You can even do it online (I have - several times). Want to know more? Then read Chapter 18.

Saturday, 5 January 2019

Don't make the judge cross with your cross-examination: Chapter 17 - In Court for Your Civil Case

Into the court room rode the lone the litigant, witnesses to the left of them, opponents to the right of them and the judge in front of them*. So how do you come out unscathed? Plenty in this chapter on cross-examination, managing witnesses, giving evidence and more.

* apologies to Lord Tennyson if he's reading

Friday, 4 January 2019

Your Rented Home Unfit To Live In? New Laws Coming Your Way

Do you have a tenancy agreement for less then 7 years or a weekly, monthly or yearly tenancy? Then your landlord is stuck with having to maintain the structure and exterior and installations for the supply of water, heating and sanitation. They can't get out of it by suggesting otherwise in the tenancy agreement.

But what about putting and keeping the premises in a condition that makes it fit for human habitation. In practice, there's now no implied legal obligation for them to do this. The tenancy agreement may say they must and, if it does, that's another matter. It if really says so then I will eat my law books.

So the structure and exterior are OK. The water, heating and sanitation are OK. But the premises are infested by mice and rats or, because of some other factors, no human being should reasonably be expected to live there. At the moment, your best bet would be to try and persuade the council to take action against the landlord to improve or condemn the premises. That won't work if the council is your actual landlord as they can't take enforcement action against themselves. A fast and effective remedy and the ability to claim compensation from the landlord might well be impossible, whether the landlord is the council, a housing association or a private individual or company.

Cue the Homes (Fitness for Human Habitation) Act 2018 which comes into force on 20 March 2019. It applies to England. Wales already has similar laws in operation. 

The new Act implies into tenancy agreements a promise by the landlord that the premises are fit for human habitation and will remain so throughout the lease. Anything stated in the tenancy agreement or verbally by a deceiving landlord isn't worth the paper it is written on or the spittle it is spoken with. And if the premises aren't fit as required then the tenant can take court proceedings (in the county court or, in very serious cases indeed, in the High Court) to compel the landlord to make the premises fit and for damages. Even legal aid would be available for the compulsion bit if there is a serious risk to health or you should be able to find a solicitor willing to take the case on a 'no win, no fee' basis.

The Act will not immediately apply to every tenancy. But it will apply to every new tenancy for a fixed period of less than seven years granted on or after 20 March 2019; to every tenancy which before 20 March 2019 was for a fixed period of less than seven years and after then becomes what is known as a periodic tenancy (say a weekly, monthly or yearly tenancy); and as from 20 March 2020 to every periodic tenancy then in existence. Geddit?!

Where the premises are in a block and there are common parts such as staircase or say a roof which is in the ownership of the landlord then they too will come into the reckoning if they lead to the premises being unfit.

It is important that the landlord is notified about the condition of the premises before complaint is made that they are in breach of their obligations.

Plenty more on the wars between landlord and tenant in my book Breaking Law. No, I am not a landlord.

Hug The Usher: Chapter 16 - Outside the Court Room for a Civil Case

So the Big Day has arrived - you're off to court. But how long will you wait? How should you dress? And who should you curry favour with? Some tips borne of my experiences are all set out in Chapter 16


Wednesday, 2 January 2019

That MasterCard Claim


The Court of Appeal has decided that there IS a right of appeal against the dismissal of the claim. But there must now be a further hearing to decide whether Walter Merricks should be given the necessary permission to make that appeal! That further hearing is now set to take place on 05 and 06 February 2019. If permission is granted then the actual appeal will be heard at the same time. If permission is refused then there will be no appeal. Clear as mud, eh?!