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Accessible legal tips, know-how and news for anyone with a complaint or legal issue from Stephen Gold, author of The Return of Breaking Law, the book

Wednesday 31 May 2017

Waitrose Parking: You Be the Judge!

It's that Waitrose car park problem again. See http://www.breakinglaw.co.uk/search/label/nonsense
I put before you, members of the jury, my latest exchange of emails. I remain confused about what has been going on. The matter for your determination is whether you should check the correct time when you park at a Waitrose pay-for car park (or only the car park at its Richmond, Surrey store) and not rely on the entry time printed on your car park ticket. You shall be the Judge.

Sent: 06/05/2017 16:18

Subject: Re: Waitrose Customer Feedback (Case No. 02990134) [ ]

Dear Paul

It’s about your Richmond store car park and its Never Right Clock. It was five minutes slow yesterday and so your long suffering customers lose out again. Obviously, the clock is not being checked daily as you assured me on 10 April 2017 OR your staff cannot tell the time OR it is checked  against other inaccurate clocks or watches. Whatever the cause may be , it is really quite pathetic that the branch cannot get its act together. It would appear that your department has no influence on local management. Does your CEO have any such influence?. Perhaps a word in their ear might be the best course. Will you undertake that? If you do, check the time first. We don’t want you waking them up in the middle of the night.

I am
Stephen ‘Amazed’ Gold

On 12 May 2017, at 15:21, Waitrose Customer Service <customerserviceteam@waitrose.co.uk> wrote:

Thank you for your further message.
I'm sorry there has still been some problems when you've visited.

We've discussed this again with the branch manager. He has told us that they have spoken with the company that manages the machine for us and asked them to investigate this again for us.  

Apparently, the time is actually set centrally by this company.  However, they will also ask for some further guidance on what more they can do at a branch level to ensure the time is correct.

I can assure you the branch are reporting these issues as soon as they become aware and are looking at how to resolve this.

Thank you again for bringing this to our attention.

Kind regards 
Waitrose Customer Care

Sent: 12/05/2017 16:22

Subject: Re: Waitrose Customer Feedback 

Dear Paul

Thank you. Does this mean that all the times printed on car park tickets issued at parks with clocks managed by the company concerned are wrong? Does the company manage all Waitrose car park clocks? Does the CEO know?
I look forward to hearing from you.
Kind regards
Stephen Gold

From: Waitrose Customer Service [customerserviceteam@waitrose.co.uk]
Sent: 16/05/2017 08:40

To: Stephen Gold

Subject: Re: Waitrose Customer Feedback

Thank you for your further message.

The manager assured me that no customer has lost out as sixty minutes has been charged for and no less, it has just been the time in which the machine has been issuing tickets.  I have passed your comments on to our executive office who deal with complaints on behalf of our Managing Director.

Kind regards 

Waitrose Customer Care

Sent: 19/05/2017 10:11

Subject: Re: Waitrose Customer Feedback 

Dear Paul
Thank you.
First, I see that you have not answered the specific questions raised by my 16 May 2017 message (save that my comments have been referred to your executive office) and I would invite you to do so.
Secondly, I just do not understand what is being said in your second paragraph. Where does 60 minutes come in to it?  Further and in any event, Waitrose just does not seem to “get’ the mischief that my most recent complaints have been directed to, namely that a customer who relies on a ticket with a time based on, say, a clock which was 5 minutes slow will lose five minutes of parking time for which they have paid.
Kind regards
Stephen Gold

Waitrose Customer Service 

Thank you for your further message.

Having spoken to the Branch Manager again, he completely understands that the system we use to manage clock is not as up to date as we would like.

I now understand the system is unfortunately not connected to the internet and can lose time.  However, if the car park machine displays 15:10 and the real time is 15:15, the customer will always have a five minute window to the 'fee' time. Therefore as a customer you will not be overcharged, but I’m sorry this has caused you any concern.

The branch are currently checking the system daily to ensure the time is correct and making random tickets checks after this to check the time is accurate. This is done by manually changing the system, which the branch now have access to.  We hope that the new system, which we are awaiting an installation date for, will resolve this problem.

The manager would like to reassure you the managing of the car park is at the top of his priority list, with decorating commencing this week, and the introduction of new machinery in the near future.

As previously mentioned we have made our executive office aware of your complaint.  However, the manager and the team are managing this issue, which we hope to resolve soon.

Thank you again for bringing this to our attention.

Kind regards 

Waitrose Customer Care

Just got back from Waitrose, Richmond. Car park entrance barrier was up as the machine had run out of tickets. Exit barrier was down when I left but escaped without damage to wallet or body.
Parking Squad

Monday 15 May 2017

When Asset Split on Divorce is Unequal

Whichever side you have the misfortune to be on in a finance case following a marriage or civil partnership breakdown, I humbly suggest that Breaking Law is essential reading for you ("Ethel, he's trying to flog that look of his AGAIN"). I look not only at how to extricate yourself from a broken relationship but how not to be screwed up when assets and income have to be divided up.

When it comes to assets, the court will apply the yardstick of equality: a 50-50 split. But that equal split can be disapplied in favour of a party who has particular needs which make it fair that they should have a greater share, particularly where an equal share would not enable the party with whom the children are to live to reaccommodate satisfactorily. And there are a myriad of other reasons which may be argued in support of what is called a departure from equality. 

In big money cases, it is sometimes argued that because one party has made a special contribution towards the marriage, they should have more than 50% of the assets in recognition of it. It is an argument that has just come under the scrutiny of the Court of Appeal . * There the husband and wife had been together for around 20 years. When they married, each had good but modest jobs. In due course, the husband took employment with a private equity fund working in Dallas and then in Japan and stayed with the company for around eight years. His total earnings with the company exceeded $300 million and by the time of the separation, the marital wealth was approximately $225 million. There were two children. The husband argued for a 61% split of assets in his favour, relying on what he said was his special contribution: an argument which was originally called the genius argument. The High Court judge who heard the case disagreed with the husband and ordered an equal split.

The Court of Appeal has dismissed the husband' s appeal. The High Court judge had been right.  Here are the ground rules. Exceptional earnings can amount to a special contribution but only when it would be equitable to ignore them. A windfall will not be enough and the contribution has to derive from something that the contributor has done. However, non-financial contributions towards the marriage as well as financial contributions can be reckoned.  It is extremely important to avoid discrimination against the home-maker in deciding on the split. There has to be some exceptional and  individual  quality which deserves special treatment but there is no established  threshold at which the special treatment will kick in.    

And last Thursday in the High Court a wife was awarded 41.5% of the assets of £1 billion with the husband failing in his argument that he had made a special contribution. The split was unequal for other reasons.

So, my friends, the grabbing of every second of overtime which is available and working through your allocated holidays may be very commendable but when it comes to a special contribution argument, I fear you will have to forget it.

*The case is Work v Gray [2017] EWCA Civ 270 in which each party was represented in court by three barristers and before the appeal was launched, the parties had between them spent £3 m on legal fees and associated costs.

Friday 12 May 2017

Handkerchiefs Out: Tax Man Loses

You are penalised by HM Revenue and Customs - that's the grand title behind which the tax man (or woman, of course) hides - for a late return or whatever and you feel like crying, screaming or eating from a mountain of jam doughnuts until your belly explodes. 

There are alternatives. You could ask HMR&C to cancel the penalty because you had a reasonable excuse for your transgression or otherwise to wipe out or reduce the penalty because of special circumstances. They have the power to do this. And you can appeal to the tax tribunal. 

Proving a reasonable excuse is no walkover: for example, see -http://www.breakinglaw.co.uk/search/label/tax%20penalties  But the taxpayer in the tribunal case of McDonald v Commissioners for HMR&C [2017] UKFTT 0265 (TC) has just done it despite opposition from you know who. The deadline for an on line return to go in came - and went- on 31 January 2012. Penalty of £100. Still no return within the following three months. Penalty of £10 PER DAY!!! Still no return within six months of the original deadline. Penalty of £300. After £1,300 had been clocked up in penalties, the return was lodged on 17 September 2012. 

The tribunal found that the taxpayer had gone through a prolonged period of difficulty which was traumatic for her. It involved her running her own self-employed business, looking after her own home, looking after her ailing parents and their home, attending to her parents' personal needs and, for a time, driving her father to visit her mother in various hospitals twice a day. This would have been physically and mentally exhausting for her. She then suffered the loss of her parents in April and September 2010. After their deaths she had had to deal with their personal effects and financial affairs. She then continued to work beyond retirement age and one reason was that she was conscious of the need to sort out her tax affairs with the help of her accountant.

HMR&C submitted that there was no reasonable excuse for the delay and no special circumstances for any reduction. They claimed that anyone's serious illness could only be taken into account if it meant that the taxpayer was incapacitated from dealing with their own affairs for the whole period from the return deadline until when the return ultimately went in.

The tribunal disagreed. The taxpayer had  a reasonable excuse for the delay and, anyway if she had not had a reasonable excuse, the tribunal would  have reduced the penalties to nil on the ground of spacial circumstances. A resounding victory although the decision could easily have gone the other way with a different tribunal.

If this helps you escape a penalty - and you can always quote the case to HMR&C when seeking an escape - then perhaps you could buy a copy of Breaking Law. There are lots of goodies in it, I promise you.

Wednesday 10 May 2017

Will Fiddling Avoidance Kit

A County Court judge sitting in London has just declared that the will of a former bus driver and then lollipop man was a forgery. Who forged it?  His widow, according to the judge. The real will left her £25,000. The forgery raised the figure to £550,000 which was much better and the widow claimed that she had found it in the loft after the man's death, inside a Doritos bag. The most striking error in the forgery was that the will was described as "her" last will (which I suppose it was except it was meant to be "his" last will).

Now if you have read Breaking Law - and if you haven't, shame on you  - you will know how you may frustrate probate being granted to a forged will and how you will certainly frustrate your estate being wound up on the basis that you had not made a will. Register the real thing with the Probate Registry for a one-off fee of £20 and a check will be made there before probate is granted on the strength of a forgery or letters of administration are granted on the strength of a declaration that you didn't make a will and the intestacy laws apply. Much more in Breaking Law. Did I mention that? 

Tuesday 9 May 2017

Avoiding Losing Your Home Because of Your Partner's Debts

You jointly own a flat or house with your partner. Perhaps you are married to them, perhaps you are not. Perhaps your name is on the deeds, perhaps it is not. You partner needs money and borrows it using the property as security for the loan. Your partner is then made bankrupt.Can you say to your partner's creditors " You can't touch the property to recoup any part of what you lent my partner." Possibly, yes. You would be taking advantage of what is called - altogether now - the equitable doctrine of exoneration. It is a doctrine which was doing the rounds in the 18th and 19th centuries. As a Court of Appeal decision the other week * demonstrates, it's as good as it ever was.

What happened in the Court of Appeal case was that the a husband who was a solicitor had debts in his law firm. So he borrowed more money   to pay off those debts under an existing mortgage on the home which  was in his sole name but which he still jointly owed with his wife.  In legal eyes, you can be a joint proprietor of  property without being on the deeds (see Breaking Law for plenty on that). Eventually, the law firm closed down and the husband was made bankrupt. The husband's trustee in bankruptcy applied to the bankruptcy court for the property to be sold. But the court decided that the equity of exoneration came into play and refused the sale. This was because the wife was to be treated as having a charge over  her husband's half-share in the property which exhausted his interest. 

This doctrine of exoneration can come into play in a variety of other situations: for example, where an unmarried couple separate after one of them has joined in a mortgage of their property to enable the other to pay off their debts and the court has to decide what are their shares in the property taking those debts into account OR where a creditor of one cohabitee is seeking to enforce a judgment debt against the couple's property.

But hold on. Exoneration won't work if the loan was raised for your benefit - so you can both go on holiday or where some of the debts are yours. This was the area of dispute in the recent Court of Appeal case in which the ruling was that the benefit had to be direct or closely connected to the borrowing and be capable of carrying a financial value. There was no such benefit to the wife in that case.

* The case is Armstrong (as Trustee in Bankruptcy of Onyearu) v Onyearu and another [2017] EWCA Civ 268

Sunday 7 May 2017

Power to the Whistleblowers

Some of my best friends are whistleblowers - and some of them are either out of work because of their whistleblowing or utterly frustrated because what they revealed at work about the misdeeds of others within the organisation was covered up or completely ignored. 

The law - mainly Part 4A of the Employment Rights Act 1996 - has aimed at protecting whistleblowers who disclose what has been outraging them to a person or body prescribed by the Public Interest Disclosure (Prescribed Persons) Order 2014. The scheme has operated badly with most whistleblowers having no confidence that their disclosures have been investigated properly or at all. Now, the Prescribed Persons (Reports on Disclosures of Information) Regulations 2017 SI 2017/507 which came into force on 1 April 2017 forces those prescribed person and bodies to report annually on whistleblowing activity within the organisation. The report is to include  a summary of the action taken and will usually be published on the website of whoever is doing the reporting.

Attack on Gender Pay Discrimination

You do, don't you? I thought so. You reckon that your boss is paying  more to other employees of opposite gender to you for performing the same or substantially the same duties as you. You may soon be able to find out if they are without the boss knowing that you are checking up on them.

New laws which came into force on 6 April 2017 compel employers with at least 250 employees to publish annual information which is designed to show whether there is a difference in the average pay of their male or female employees. The first publication must be made by 5 April 2018 on the employer's website and in a way which is accessible to all its employees and to the public. Government departments, the armed forces and other public authorities are excluded from these laws but worry not because they are caught by similar legalisation which came into force on 31 March 2017 and must be complied with for the first time by 30 March 2018. This will benefit around 3.8 million employees in England alone. 

If you don't believe me or want to own more then devour the Equality  Act 2010 (Gender  Pay Gap Information) Regulations 2017 SI 2017/172 and the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 S1 2017/353.