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 hot 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.