MAKE A NOTE: 18 JANUARY 2017

Don't open the champers yet but you could (no promises) ultimately be entitled to some money by barely straining yourself. It's all because of what is known as a collective claim against MasterCard for around a cool £14 billion. You have never used a MasterCard? You have never spoken to MasterCard? You have never heard of MasterCard? Worry not.

Between 1992 and 2008 millions (or trillions) of customers paid for goods and services by using a MasterCard credit or debit card. It turns out that each time the business accepted the card, it paid a fee to MasterCard which was unlawful. This has been decided by the European Commission. More than half a million businesses in the UK including major supermarkets who paid these fees passed them on to you by charging higher prices. So you, it is said, have lost out whether or not you personally used a MasterCard, by being charged more than would have otherwise been the case.

Walter Merricks who is a lawyer and former Financial Ombudsman doesn't reckon that is fair and so has brought a claim against MasterCard on behalf of anyone who has lost out because of those unlawful fees. The claim has been made to the Competition Appeal Tribunal under the 2015 Consumer Rights Act.  If the claim was successful you could be in for some sort of pay out - goodness knows how much or how it would be calculated - provided that you paid for goods and services from a business that accepted MasterCard - though you didn't necessarily pay through MasterCard - between 22 May 1992 and 21 June 2008. But you would have had to have been a UK resident for the previous three months non-stop, been at least 16 and paid that higher price.

The Tribunal to which the claim has been made has to decide whether to allow the claim to continue. It will do this at a hearing set of 18 January 2017. If you wanted a day out and had nothing better to do, you could ask for permission to make representations at that hearing, especially if you are someone who could benefit from the claim being allowed. You must do that by 22 December 2016. But, seriously, you would have to have really good reasons for seeking that permission. They won't want a few thousand individuals chipping in.

There's nothing you need to do at the moment except watch this space and pray. But if you want more info, go to www.mastercardconsumerclaim.co.uk

GET BEAKING

You know how keen I am to get you judging. Just think of the joy in potting your next door neighbour. Actually, if you were sitting as a magistrate and someone came up known to you then you would have to sit back and take no part in the case or you would no longer be sitting as a magistrate.

So don't wait to be called up for jury service. Here is the latest information on which counties are recruiting or will soon be recruiting for new magistrates. Hants and the Isle of Wight from next Thursday; Surrey and Sussex from 9 January 2017; and currently, Kent, Norfolk, Nottinghamshire and Suffolk. More info on www.gov.uk

And remember, don't tell them it's the next door neighbour you are after, but justice.

BLAMING YOUR ACCOUNTANT

Ouch! That's the pain of receiving a penalty assessment from the Inland Revenue (or HMR&C to be precise). But if the penalty relates to wrong information in a tax return or accounts which is down to your accountant or some other agent and you took reasonable care to avoid the inaccuracy then you should be able to get the penalty quashed.

In a case just before the tax tribunal, two taxpayers had been advised that they could claim the owner-occupier exemption for capital gains tax covering a rise in value over three years on the strength of living in the house for just three weeks between exchange of contracts to sell and the actual sale taking place. Now, the idea may sound surprising to you but the taxpayers believed it and they believed it because that is what their accountant told them. So they signed their tax return on that basis.

When the Revenue discovered this was nonsense, they decided to penalise the taxpayers in addition to claiming the extra tax payable. The penalty was £7,000 for one of them and £6,650 for the other. They appealed against the assessments and the tribunal has now quashed them.

The taxpayers had told the truth. The tribunal said that where a person seeks appropriate professional advice from somebody who is a professed expert in a particular area, it will almost always be reasonable for them to rely on it. That's provided the person giving the advice is seemingly competent and there are no indicators that they ought not to be relied on. It would have to be reasonably obvious that the expert was talking through the back of their head: something subtle or which would only be pricked up by a fellow professional expert won't be enough to sink the taxpayers.

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DRUGS LAW CHANGES

Possession, supply etc of a new group of drugs will be criminalised as from 14 December 2016. A third generation range of synthetic cannabinoids will be classified as class B drugs. Their psychoactive effects and potential harm are said to be similar to cannabis and other synthetic cannabinoids.

The anabolic steroid dienedione also joins the taboo list as a class C drug. 

"DON'T TELL MY WIFE"

You have information that a husband is cheating on his wife. Are you legally entitled to tell the wife what you know or can a court order you to keep your mouth shut? The High Court has had to grapple with this conundrum before. It had to do so again last Tuesday.

In this latest case, the husband was having an affair with another woman. During some part of the affair the other woman was seeing a second man who she was two-timing. The second man came to find out he had been two-timed and was none too pleased. It was alleged that he had hacked into the other woman's email and read private and confidential correspondence between her and the husband and that he was threatening to disclose private information to the wife who was ignorant of the affair.

The husband and the other woman applied to the court for an injunction to stop the second man from making various disclosures to the wife and from harassing the couple. Initially, they obtained an injunction at an emergency hearing without the second man being given advance notice and that injunction was confirmed last week.

The argument put forward by the husband was that it was his right to decide whether and, if so, how to disclose his infidelity to his wife. This is how the judge saw it. The human rights convention came into play. An individual had a right to decide who got to know what about their private life, when and by what means. But the wife and the second man had their own rights too. The court had to strike an appropriate balance between the competing rights.

A person who finds out that a married individual has been unfaithful to their spouse could, in some circumstances, have every right to inform the wronged spouse who might have a right to know that information. If the person came by the information by observing behaviour in a public place, for example, the court might be reluctant to intervene to prevent disclosure. It could make a difference if the person acted out of a disinterested concern for the well-being of the ignorant spouse. 

But it was improbable that the court would consider it legitimate to disclose details of the unfaithful spouse's correspondence and still less so where that correspondence had been accessed through hacking.

STOP THE WALTZ

Halt the ballroom dancing. Come 1 December 2016 the age limit for jury service is being raised from 70 to 75. You may make it on to a jury for a criminal trial, a coroner's inquest or a civil trial in the High Court or county court. Juries in civil cases, though, are now rare. They once prevailed in libel and slander cases where they often awarded crazy damages which went through the court roof so they've been almost eliminated there. They are occasionally allowed in claims for damages for false imprisonment or malicious prosecution against the police and where there is an allegation of fraud in civil proceedings.

You gets your travelling expenses. 31.4 per mile by car or motor bike but if I am selected - judges and former judges aren't exempt - I'll borrow a  pedal bike and collect 9.6 p per mile. If you do the same, don't pedal too hard as jury box perspiration is obnoxious and don't fall asleep either or you're likely to be thrown off the jury. Should you be lucky enough to still be in  job which pays, any loss of earnings will be reimbursed but with a cap - for example, £64.95 per day so long as you have been at it for at least four hours but the cap rises to £228.06 after 201 days. Calm down, you are likely to be released much earlier than that and, if it is going to be a long trial, you may have to suggest they take out a life assurance policy on you!

Should you fancy a spot of jury service, I wouldn't write in and ask to be considered. They may think that's too keen for comfort. Just wait for the jury summons to arrive and, in the meantime, you can practice the oath.

In a criminal trial- "I swear by ....(according to religious beliefs) that I will faithfully try the defendant and give a true verdict according to the evidence."

And in a civil case - "I swear by..... (according to religious beliefs) that I will well and truly try the issues between the parties and a true verdict give according to the evidence."

Now that was very good. Can you start next month?

M&S, WHERE'S ME TROUSERS?

The things I do for you!

I reported on 7 October 2016 (see under consumer rights) about the unstitching of the fly of the trousers I had bought from Marks & Spencer. I exercised my right to a repair under the Consumer Rights Act 2015 on 7 October 2016. Where a repair (or the alternative right to a replacement) has been asked for, the trader must comply within a reasonable time and without significant inconvenience to the customer. Whether or not the trader has complied will depend on the nature of the goods and the purpose for which they were being acquired. The trader must bear any necessary costs involved including the cost of labour, materials and postage.

So what was a reasonable time to stitch up a fly? 14 days, I would say and certainly no more than 28. Those 28 days were up last Friday. So that very day, I sent my friends at M&S customer services a little e mail. In the matter of the trousers, I said this- 

But I am back in The Case of the Opening Fly. I returned to your Kew store on 7 October 2016 a pair of trousers, the fly of which had become unstitched and exercised my statutory right to a repair. The trousers were left with you to enable that repair to be effected. Given that I had not asked for a house to be built or the trousers to be enlarged to accommodate a 60 inch girth or a 40 inch pair of legs, I would have expected to hear by now that they were ready. Where are they, please? They should now be returned to me in a repaired state at the address I can notify. 

And they said

Hi Stephen

I'm sorry it's taken so long for an update about your pair of trousers.

I've spoken to the Duty Manager at Kew, she told me the trousers have been passed on to the Alteration Specialist - they should hear from them soon.

She isn't in today, but I've passed your information on to one of my colleagues who will call the Kew store tomorrow and speak to her about where we're up to with the trousers.

Thanks for getting in touch today, we'll be in touch soon.

Kind regards

Retail Customer Services
Your M&S Customer Service

And then after a further prod from me and kind customer services sentiments abut my feeling well, I got a call from the store this afternoon  The trousers will be ready this Saturday which takes us to five weeks. M&S has promised to send the trousers to me to save me having to incur expense in returning to the store.

In certain circumstances, the trader may be able to refuse a repair (or replacement) where this would be impossible or disproportionate. For more , see Breaking Law at chapter 39.