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