Dear Harry and Meghan

Dear Harry and Meghan (if I may)

Let me be the 2,689,767th person today to congratulate you on the occasion of your engagement to be married. I wish you every happiness for the future.

You may feel it is indelicate of me but I feel I must raise the topic of pre-nuptial agreements. I have never hidden my view that, generally, any person who seeks to enter into such an agreement with their future spouse or partner is despicable. On the other hand, I know that some engagements  would falter if such an agreement was not entered into. Under the law of England and Wales as it currently stands,  there is no cast iron guarantee that an agreement would stand up if it was challenged in court but there is a good chance that the court would follow it so long as it was fair in what it said, freely entered into and the party challenging it was not the victim of fraud or misrepresentation by the other party.

It may be that in the light of your particular financial circumstances - and I fancy that you, Harry, have beneficial interests in a number of trusts - I could sympathise with your wish to go down the pre-nuptial agreement road. If that be so then why shell out £1K per hour on the charges of a Central London lawyer when for just £19.99 - though the publishers and Amazon etc have deals on at the moment - you can access a template agreement in Breaking Law by Stephen Gold? Crikey, I've just realised, that's me. And you could also make an agreement just to cover cohabitation for the time being in case plans were changed. All sorts of remote and ridiculous contingencies are sometimes contemplated. Anyway, there is a cohabitation agreement template as well in Breaking Law which many couples who never plan marriage or civil partnership would find handy so as to protect their respective positions.

I'm not expecting an invite but I will be watching you next May and wondering whether you put Breaking Law up for sale on e-bay after you had finished with it. 

Kindest regards
Stephen
PS I realise you won't be needing the no-sex agrement template but you may find it interesting.

ACCELERATED POSSESSION: NEW FORMS

New claim forms for seeking possession of a house or flat let to a tenant under an assured shorthold tenancy are to be used as from 1 December 2017.  Because of changes in Welsh housing law, separate forms have been devised for proceedings in England and proceedings in Wales. The defence form has been revised too and with different versions for England and Wales. The claim form for England is called the N5B England and the claim form for Wales is called the N5B Wales. Cool.

The new forms can be accessed on http://formfinder.hmctsformfinder.justice.gov.uk 

If you use the old form on or after 1 December 2017 it is likely to be bounced back to you. If it isn't, you could well  be refused a possession order when the judge takes a look at it and have to amend your paperwork. No problem will arise when completing the claim form online because you will be completing the correct form. 

There are numerous traps for a landlord seeking a possession order and as many opportunities for tenants to deny their landlord possession because they got it wrong. For these and the landlord pain and tenant joy of a penalty over failure to protect a deposit, see my book Breaking Law.

Get £5 off Breaking Law

If you're looking for the perfect Christmas gift for the lawyers, litigants and vigilant consumers in your family then your search is over! Buy them a copy of Breaking Law at £5 off the RRP!

If you order on my publisher's website before midnight 1st December, it's only £14.99*, not the usual £19.99*, and you can buy as many as you need at that price.

All you need to do is enter the code breakingblack17 when you check out on the Bath Publishing website. Or you can click the button on the left.

And as its nearly the festive season please feel free to share the code with anyone else you know.

*(plus £3.50 p&p)

Statutory Demands: New Rules

You may only be interested in this if you are a lawyer doing insolvency work or a debtor trying to prevent your creditor from making you bankrupt (and remember that no creditor can now do this unless the amount of the debt is at least £5000 although you can apply for your own bankruptcy owing less).

Bankruptcy proceedings cannot generally be launched unless the creditor has previously brought a form called a statutory demand to the debtor's attention. That must allow the debtor 21 days to pay up after which a bankruptcy petition can be issued and 18 days to apply to the court to set it aside because, for example, the debt is disputed or the debtor has a cross-claim against the creditor. 

On 8 December 2017 the procedural rules dealing with statutory demands are amended by the swingingly entitled Insolvency (England and Wales) and Insolvency (Scotland) (Miscellaneous and Consequential Amendments) Regulations 2017 SI2017/1115. They say that the court can refuse to issue a bankruptcy  petition if it is not satisfied that the creditor has discharged their obligation to do all that is reasonable to bring the demand to the debtor's attention. Personally handing the demand to the debtor is the usual and best way of satisfying the obligation but very, very, very, very occasionally  (I don't think) that is not possible because the debtor just happens to be hiding away from their creditor. 

The other statuary demand changes require the periods shown on the demand for paying up and applying to set aside to be extended when the demand is being served outside England and Wales. If this is not done, the demand could be invalid.

There's plenty on bankruptcy - avoiding it, pursuing it and coping with it - in my book Breaking Law.

£91K LATE PAYMENT TAX PENALTY QUASHED

A tax penalty of just over £91,000 has just been quashed by the tax tribunal in Pearson v HMRC [2017] UKFTT 0780 (TC). It was capital gains tax for a cool £1,833,000 that CEO Mark Pearson had been due to pay on the sale of company shares. That tax bill should have been settled on 31 January 2016 but Mr Pearson was around six months late. He claimed that he paid as soon as his financial circumstances permitted. But did that afford him a get-out?

The law for late payment of most taxes (this does not include VAT) is contained in the Finance Act 2009 at schedule 56 sub-paragraph 16(2). Better than War & Peace but not a scratch on Noddy Goes to Toyland. The tribunal judge ruled  that the test to be applied to whether or not Mr Pearson could escape his penalty - and it was a different test to the one the parties' representatives were suggesting - was this. Was the payment late due to an insufficiency of funds and, if so, did that insufficiency arise by reason of events which were outside his control? If the answer was 'yes' to each then Mr Pearson would have a reasonable excuse - and so will you if in a similar situation. The judge was satisfied that he could give that 'yes' answer to both questions and so the penalty disappears. 

The judge did say that Mr Pearson might have avoided the penalty being imposed in the first place if he had kept the Revenue better informed about his difficulties in the run up to the deadline for payment. The Revenue, he thought. might have reacted a little more sympathetically if that had happened. Mr Pearson appeared to accept that he was at fault in this respect.

Unreliable Hair Strand Testing for drug and alcohol use

Did hair strand tests mark you down as a drug addict or alcoholic - or both? And was the only drug you had ever taken  a paracetamol tablet for a headache and sneezing and the only drink you had ever consumed a glass of Babycham at your Mum's birthday party? Then you may be able to secure the overturn of a family court order which went against you on the strength of faulty forensic testing evidence. 

Radox Testing Services (see http://www.breakinglaw.co.uk/search/label/forensic%20evidence) have already been the subject of possible concern, according to the Ministry of Justice. Now the Ministry has announced that it is treating test results by Trimega Laboratories Limited between 2010 and April 2014 as potentially unreliable. Testing by this company in criminal proceedings has been the focus of some media attention since the announcement. But family - and possibly non-family - civil cases will also be involved. Should you have been the victim in such a case of a miscarriage of justice on the strength of a dodgy forensic test by Trimega then, put down the cuppa, cancel Chase for 5pm today and get to a solicitor or legal advice agency.

Free Company Snooping

A judgment for debt is only as valuable as the ability of the debtor to settle it. That's why I implore you to make enquiries about the financial stability of the debtor before taking the risk of pouring good money down the litigation drain. Searching the Register of Judgments, Orders and Fines run by Registry Trust  for details of High Court and County Court judgments against the debtor which remain unpaid and with credit reference agencies are cheap ways of making those enquiries (see my book Breaking Law which I have not mentioned since breakfast).

And if it's a company which owes you money or you are just a nosey-parker, bless you, a new cheap way of getting some idea of their strength or lack of it - apart from obtaining copies of their accounts at Companies House - is to search the data on commercial and corporate ownership run by the Land Registry. The search would also enable you to identify properties at which you might want an enforcement agent or bailiff to seize goods or to figure in an application for a charging order to secure the debt.  The Land Registry holds details of 3.3 million freehold and leasehold properties in England and Wales owned by UK companies and corporations and  overseas companies. 

The big deal is that searching for this information has just become FREE! To register for the data go to https://data.landregistry.gov.uk

Employment Fee Refunds: Claim For Christmas

Waiting to claim back a fee unlawfully extracted from you for  an employment tribunal claim (see http://www.breakinglaw.co.uk/search/label/employment%20tribunal%20fees) ? Then, take it away! The scheme for repayment has now been opened out. As from today, you can take the initiative and put the claim forward. For precisely how to do it, go to www.gov.uk

Good luck!

There's A Bee in My Honey - And It's Dead!

I once tweeted that I had jars of honey for sale containing live bees. Just a joke, you understand. No offers to purchase were received but I gained a health shop as a follower which quickly decamped upon more careful consideration. 

Alas, nothing funny about one of the two jars of natural raw buckwheat blossom honey I ordered through Amazon the other week. One of them had the corpse of a bee inside (or alternatively a wasp but I cannot be sure until I have had an autopsy performed although a quickly convened jury reckoned, on balance, that it was a bee). It's all well and good that next year EU legislation will help companies introduce such delights as locusts, mealworms and crickets into our diets but, the entire corpse of the aforesaid insect was, I thought, beyond the pale.

I decided to reject both jars. I notified rejection through Amazon - on line, of course- and asked for the supplier to arrange collection.  In response, I was given a list of option returns. Waiting for the supplier to call was not one of them. Not being a litigious type, I decided to be merciful and to indicate I could return via a locker at a local store. However, when I was informed that the locker reservation would only be available for what was a very short period, I changed my mind. This was my web question and chat with Amazon.


Initial Question: I cannot return during the limited locker time allowed and revert to my original request that the seller arrange for collection. It is not my legal obligation to be put to the inconvenience and expense of repackaging and redelivering.

12:30 PM GMT Surendar(Amazon): Thank you for contacting Amazon.co.uk. My name is Surendar. Am I chatting with S Gold? 12:30 PM GMT s gold: Yes 12:31 PM GMT Surendar: Hello Gold, I can understand your concern regarding this. Let me check and help you in this. 12:33 PM GMT Surendar: Just to confirm, is this the item you are referring for: Natural, raw buckwheat blossom honey (1 kg) ?Natural, raw buckwheat blossom honey (1 kg) ? 12:34 PM GMT s gold: Yes, two jars. 12:34 PM GMT Surendar: Thanks for confirming.Please bear with me 2 minutes while I check this for you. 12:36 PM GMT Surendar: I have checked and see that the return label is created today, you can return the item within 3 business days. You no need to worry for the package, please return the item with any of the box you have. 12:38 PM GMT s gold: Please reread what I have already said. I am NOT prepared to be put to this trouble. There has been a most serious breach of contract - a dead insect in one jar. My legal right is for a return of the price paid for the two jars and reimbursement of consequential losses. The seller must COLLECT. 12:40 PM GMT Surendar: Just to confirm, is the insect found on both the jars you have been received? 12:41 PM GMT s gold: No one but the contract is not severable. If the product cannot be trusted - one is unfit for human consumption - then I am entitled to reject both jars as I do. 12:43 PM GMT Surendar: Okay Gold, I'll forward this issue to the internal team and they will update you via email in 24 hours. 12:43 PM GMT s gold: Noted. My name is Stephen Gold. 12:44 PM GMT Surendar: I'm sorry, I will forward this issue to the internal team they will reach you via email in 24 hours. 12:44 PM GMT s gold: OK. And then, within 24 hours, Amazon  - not the actual supplier under the contract -returned to say they were refunding the full purchase price and, so far, they have been silent about any return. It looks like the honey - and the bee- will soon be destined for my dustbin. Where goods are being rejected because they were not up to legal standard, as in this case, the Consumer Rights Act 2015 says that the consumer must make the goods available for collection by the seller unless the consumer has agreed to return them. That means that, as a general rule, the seller must make the necessary arrangements to get the goods back. Either way, the seller must bear the expense of return except for any costs incurred by the consumer in returning them in person to the place from which they originally got them. Different rules apply to cancellation where the distance selling regulations come into play - and they do cover on line transactions - but in this instance I was relying not on those regulations but on the 2015 Act and a breach of contract. For much, much more on consumer rights and template letters and court forms, see Breaking Law - and if the pages fall out, you may have a claim!

Vulnerable in a Family Case? New Rules

Involved in a family case  - may be about child welfare or matrimonial finances - as a party or witness and terrified that you will be harassed at court by the other party or their family or by other witnesses? I have just the thing for you. New procedures to protect you by courtesy of the Family Procedure (Amendment No 3) Rules 2017 SI 2017/1033 which come into force on 27 November 2017. A practice direction to supplement the new rules will come into force and be published on the same date.

The court will have to consider as soon as possible after the case has started whether a party or witness is vulnerable and, if so, what steps to take to protect them. Any concerns can be raised in the paperwork which commences the case or through a specific application which can be made at any later stage. The court may be prepared to direct that you give your evidence or otherwise participate in the proceedings from behind a screen in the court room, give your evidence via video link or give your evidence separately from everyone else at some earlier stage than the full final hearing. If you might have difficulty because of your vulnerability in giving evidence or understanding the questions then it will be open to the court to appoint another person to assist you in the witness box.The rules also provide for help for children and persons who lack the mental capacity to deal with evidence.

A welcome move. Family courts  have lagged behind the criminal courts in ordering measures of this kind.

For lots on how to cope with family cases and template pre-nuptial, cohabitation and no-sex agreements, see my book Breaking Law.

Non-Matrimonial assets. Keep Out: 'It was mine before I met you!'

If you are not going through matrimonial financial proceedings or have no plans to do so for the foreseeable future then don't waste your time in reading any more of this and instead catch up on the latest MP to have wished they kept their hands to themselves. 

'I inherited that money so it should be ignored.'

'I won the lottery after we had separated. That's my cash.'

These are the sort of pleas that are often to be uttered - sometimes screamed - out of the Family Court which deals with the division of assets and income on the break up of a relationship. 

But what does the law say? It talks of non-matrimonial assets which means property and cash which are NOT the product of or generated by the parties' endeavours during the marriage or civil partnership, such as an asset which has been inherited or gifted or which was owned by one party before the marriage or partnership or has been obtained by them as a result of their efforts after separation. 

Assets such as these may often be ignored when it comes to deciding who gets what. But they may sometimes be taken into account so that they are shared by both parties where that is fair: especially, where  they have been mingled with the family assets and the relationship has been a long one. The family home, although brought into the relationship by one of the parties, will usually come up for sharing unless the relationship has been a very short. The other situation in which one party will be able to gain some benefit from assets of the other which are clearly of a non-matrimonial kind is where that is fair because of the needs of that party (where, for example, that party is the sole or main carer of children of the relationship and reasonably requires some money out of the assets to buy another home once the family home is sold). 

The Court of Appeal has just been considering non-matrimonial assets in a case called Hart v Hart [2017] EWCA Civ 1308. What the case demonstrates is that there is no judicial appetite for a lot of time and money being spent on hearing evidence and argument on whether certain assets are matrimonial or non-matrimonial property. There needs to be a decision made at one of the preliminary hearings where there is a contested application as to whether the court should hear evidence and argument of this kind. If the facts clearly demonstrate a sharp dividing line between matrimonial and non-matrimonial property then the court should use that line for the purpose of deciding what award to make. If, on the other hand, an investigation would require an account to be undertaken of the relationship  or some other expensive investigation and/or it would be of doubtful utility then the court could be expected to say that it was neither proportionate nor required to achieve a fair outcome. Should an investigation be justified then the court would have to direct how particular or general it should be.

The distinction between matrimonial and non-matrimonial assets may continue to be of practical importance. However, if what looks like a disproportionate or pointless investigation into the distinction is being sought by your opponent to which you are opposed, then ask the judge - with the greatest of respect - to have a butchers at Hart v Hart. 

Personal Injury Compensation Up

Injured in an accident and making a claim? What's the claim worth in respect of your pain and suffering and what is called loss of amenities? You will get a good idea from a publication which judges and lawyers use to provide guideline figures. It's called Guidelines for the Assessment of General Damages in Personal Injury Cases (catchy title, eh?) and is published by Oxford University Press on behalf of the Judicial College. It's available to the public. A new edition has just been published with higher figures to reflect the fact that there has been a retail prices index increase of 4.8% in the two years since publication of the previous edition. Every case can be different and so no judge will be a slave to the guidelines: they will depart from them if the evidence justifies it but you will get a really good idea of the ball park figure you should be aiming for from this publication.

The government is threatening legislation to bring down the awards which courts can make in cases involving whiplash and minor psychological injures as from 1 October 2018. But there's no legislation yet and, at least for the time being, the much higher figures in the Guidelines will apply.

So, for example, for a minor neck or minor back injury, where you fully recover within three months, you are likely to be awarded between £2,050  and £2,150. For other general minor injuries with a three month recovery period, the range of damages is likely to between £1,200 and £2,150. What the guidelines do emphasise in these cases is that too casual an approach to the length of time before full recovery  has taken place should be avoided and that special regard should be had to the fact that recovery may not occur at an even pace. In some cases, the pain and suffering could be very intense for a few weeks and then only moderate, whereas in others it could be moderate for the whole period.

At long last, judges have been advised that in cases involving scarring, there should be no difference in their approach when dealing with a male rather than female. Previously, females have collected higher damages than males.

On top of the compensation I have been talking about you may be entitled to recover specific losses such as loss of earnings, damage to property, the cost of physiopherapy treatment and so on. 

It would be advisable for you to take in a solicitor to help you with a claim though you will not be able to obtain legal aid.  Most solicitors will operate on a 'no win, no fee' basis. In that situation, don't sign up for a high success fee where the claim is straightforward and there is to be no dispute about you being entitled to something. There's much more on this in my book Breaking Law (which I have previously mentioned one or twice).

And, remember, the new guidelines will apply to your claim whenever the accident occurred. If your compensation is being negotiated or decided by the court now then the new figures and not the old figures will apply.