Business Rates Major Victory

Owners of empty business premises rejoice. The Court of Appeal has just provided them with a possible escape route from being condemned to pay punitive rates (after three months of emptiness) despite the fact that they are not receiving a bean by way of rent. The case is Telereal Trillium v Keven Hewitt (Valuation Officer) [2018] EWCA Civ 26 in which judgment was given last Friday.

The case was about a three-storey office block in Blackpool. Although empty, it was given a rateable value of £490,000. The valuation officer had sought to follow the valuation hypothesis set by statute by adopting the estimated rent for which the building could be let on a yearly tenancy. The valuation tribunal to which the owners appealed was unimpressed and valued at £1! But it was later agreed by the valuation officer that nobody would have been prepared to occupy the building and pay a positive price. ‘So what?’ was the valuation officer’s retort to the Court of Appeal. The rating hypotheses requires the valuer to assume demand that does not in reality exist and what did exist was a general demand because other comparable office properties had been let.

The Court of Appeal held that in the absence of any actual demand, there was no principle of law which required such a demand to be assumed. The evidence was that the relevant market was saturated. However, every case will turn on its own facts and any owner intending to rely on this decision will need to show that there is no general demand in the area for premises such as theirs. Extensive efforts by them to find an occupier - if only a 'pop up' selling plastic cups for a few weeks - would be useful.

The rulings could encourage more appeals to valuation tribunals or higher tribunals and some applications for an extension of the appeal time limit.

STOP PRESS 
This decision has been reversed by the Supreme Court on 15 May 2019 by a majority of three to two (see [2019] UKSC 23). But the argument raised by the tenant may not be dead for ever where the facts support it. 

Court Closures: latest potential victims

Plans have just been announced to close the county court at Wandsworth, the crown court at Blackfriars and the magistrates’ courts at Banbury, Maidenhead, Cambridge, Chorley, Fleetwood and Northallerton. Consultation on the plans has opened. Objections to HM Courts and Tribunals Service.

Sneezing Revisited

It's not that I am hard up for material to blog about. It's that people are sneezing - and coughing - all over the place and there's a lot of flu about, isn't there? We should all arm ourselves with a handkerchief when we step out of the front door (if not before) - and use it! I am reproducing below an earlier post of mine as an encouragement to being responsible.

Assault By Sneezing

This is the silly season, alright. And this topic may sound silly. But I'm serious 'cos I am fed up to the teeth with being sneezed at wherever I go. We should all keep our germs to ourselves. And if we don't? Well, let's see.

An assault and battery are known to the civil law as a trespass to the person. If an unprotected sneeze is directed into your face then I regard that as such a trespass. It's probably also the tort of negligence. It could be either or both when, though not directly aimed at you, the sneezer is aware of your presence and the sneeze is emitted so close to you that they should have foreseen that you might catch something from them.

Proving that it was a result of the sneeze that you were struck down could be the obstacle to a successful civil claim for damages. You would have to prove that it was more probable than not that the sneeze was the cause of your illness. Physical closeness, the absence of prior symptoms, the velocity of the sneeze and the stage at which the symptoms began to manifest themselves will be among the major factors for consideration. The further away from you was the sneezer, the weaker your case.

A good sneeze can certainly travel at 60 to 80 miles per hour for up to 20 metres but research published in 2015 suggested that droplets from sneezes - and coughs - may travel 200 times further than had been thought. The incubation period for whatever is to follow the sneeze is around 24 to 48 hours.

Of course, you cannot make a civil claim unless you know the identity of the sneezer. Don't attempt a private arrest. For more on overcoming this obstacle and draft particulars of claim for a sneezing claim for damages, see my book Breaking Law. No warranty is given that you will succeed but let's hope someone does..... soon.

New Court Forms In Family Cases

Beware. Certain court forms are being amended for family cases on 8 January 2018 although the current forms will still be accepted by the court during a short period of grace which ends four days later. The affected forms are the C100 (application for an order under the Children Act 1989),  A (notice of application for a financial order), A1 (notice of application for a financial remedy), B (notice of application for the court to consider the respondent's financial position after divorce or dissolution) and FM1 (family information and assessment form). The forms will be accessible on the Internet at https://hmctsformfinder.justice.gov.uk/HMCTS/FormFinder.do

The changes reflect the revisions to legal aid making it easier for the victims of domestic violence to obtain legal aid in family cases as from 8 January 2018 (see http://www.breakinglaw.co.uk/search/label/legal%20aid) and what will be consequential changes to the scheme requiring mediation information to be obtained by certain applicants before starting family proceedings. 

Hurry. Planning fees going up.

Here's my Christmas present to you. And you can't return it if you think it stinks. It's news that may save you money.

If you are about to apply for planning permission, make the application before 18 January 2018. The fees payable to local planning authorities for planning applications, deemed applications, requests and site visits are increasing by around 20 per cent on that date. A fee will also be chargeable for permission in principle which is a new route to planning permission.

So pull out your planning finger and at the same time you can start a war with your neighbours who you can bet will object - even if you did send them a Christmas card.

Essential Laws for the Festive Season. Ignore At Your Peril!

Extend the 30 Days If the goods you purchase as a consumer are below legal standard, you are at your legal strongest by rejecting them within 30 days of delivery (less if they are perishable). It's known by the law and lawyers (whether or not they are wearing their wigs) as 'short-term' rejection. But the trader who is selling them can agree to extend the 30 days. Make an extension a condition of purchase. 'I'll buy this parrot but only if you agree to extend my right of short-term rejection under the Consumer Rights Act 2015 to two months (you can ask for longer, if you want) and write on the till receipt that this has been agreed. And I don't care if I am holding up the queue.' 

Use Credit Card By paying with your credit card on a purchase which has a cash price of more than £100 and up to £30,000 you may get extra protection under section 75 of the Consumer Credit Act 1974. This makes the credit card company equally responsible with the seller for any breach of contract or misrepresentation. Useful if the seller goes out of business or is especially difficult. You still get the protection if you paid with a mixture of cash and credit card so long as the cash price exceeded £100. And that's £100 on the particular goods you are moaning about rather than the total of your entire shopping from that trader. But beware. Credit card companies are starting to refuse to accept liability where there has been in intermediary which has processed the transaction. Whether or not they are legal justified will depend on the arrangement with the intermediary but transactions through Amazon Marketplace or Pay Pal will probably mean that section 75 does not apply.

Avoid Duff Present Embarrassment It's embarrassing for the relative or friend (or former friend!) to whom you have gifted the purchase to come back to you and tell you that the present has fallen to pieces and was rubbish. The seller may inform them that can take  running jump because they weren't the buyer and so they cannot complain of a breach of contract. Put them in the position of being able to complain directly to the seller without having to breathe a word to you. Get the seller to write on the till receipt (if it's long enough, otherwise continue on the back): 'This purchase is for X and we agree that she shall be entitled to enforce all terms for their sale as the third party.' If the seller won't agree before you say you are buying, tell them you will have a go at the shop next door and don't worry if you held up the queue. Alternatively. transfer in writing your rights under the contract to the person to whom you gifted the purchase and tell the seller in writing that you have done so.  Of course, as purchaser, you could always take the damned thing back yourself!

Be strong on No-Receipt If the seller has agreed to a refund or credit note within a specified period but makes production of the receipt an essential condition of going along with this then you've had  it should you have lost the receipt - unless you get the seller on a very good day or are dating the manageress. But this does not apply where the goods are below legal standard although it is only reasonable that you should be able to satisfy the seller that you bought the goods from them and not one of their rivals. If no receipt you may have some other proof like a credit card statement. Nothing whatsoever available? Then the conversation may go like this.

'Do you accept I am a truthful person?'

'Yes.'

'Well, I as a truthful am  personal telling you that I purchased this item (a) from you; (b) when I say I did; and (c) for the price marked on it.'

'Sorry, sir, but our policy is that we must see the receipt.'

'Which means I have to sue you and claim the price, interest, court fees and my car park expenses for today and you will have no defence. There is no reason why the judge should not accept my word. What a complete waste of time.'

'I'll just get the manager.'

Don't be sneezed at  I am sick and tired of catching the germs of other shoppers as they sneeze in my face. So should you be. but for sneezing in your face, not mine. You may be entitled to compensation. Really. See http://www.breakinglaw.co.uk/search/label/sneezing%20claims

Buy a copy of my book Breaking Law and do yourself a favour and me a favour. Make a nice Christmas present and the pages won't fall out. There's loads of law in it and it's in plain English. And jokes. And my time with the Krays. And template letters and court documents. And template pre-nuptial, cohabitation and no-sex (what?!) agreements. It sounds good. I think I'll get myself a copy.

Compliments of the Season and a Happy New Year

  

Tax Penalty Invalidated Because Imposed by Computer

A company was late in filing its tax return. Result? You guessed right. It was fined £100. It appealed against the penalty to the first-tier tax tribunal. 

The tribunal judge wanted to be satisfied that the the Revenue's determination to impose a penalty had been validly made. It was for the revenue to prove this was so. The Taxes Management Act 1970 section 100(1) says that..."an officer of the Board authorised by the Board ...may make a determination imposing a penalty under any provision of the Taxes Act and setting it at such amount as, in his opinion, is correct or appropriate." 

From such documents as were produced to him in the case, the tribunal judge concluded that the penalty notice had been issued automatically by a computer as had been the covering letter sent out with it to the company. It appeared that the Revenue's computer was programmed to run checks shortly after the due date for filing a return that was entered into it. If it found no entry for the return being received, the computer caused an entry to be recorded that a determination was made for the imposition of a penalty and the computer issued a notice to this effect. All without any decision making by an officer of the Revenue. 

In a judgment just published, the judge ruled that the requirement in section 100(1) of the 1970 Act mentioned above was for a flesh and blood human being who is an officer of the Revenue to decide to impose the penalty and then give instructions in relation to it which could be executed by a computer.

The judge quashed the penalty but in doing so made the point that his decision was limited to the late company tax return penalty which was the subject of the appeal and should not be taken to apply to other penalties for different taxes under schedules 55 and 56 of the Finance Act 2009. Nevertheless, it is an argument which may well be run in cases involving other taxes but there different statutory wording may apply. Two other matters. The decision in the company's case was not an upper tribunal decision or higher and the Revenue did not address the issue of the determination's validity or engage in the appeal in a very active way. On another day, it may well have much more to say which is relevant.

If you are aggrieved by a penalty, you might ask the Revenue who decided to impose it and,if not a fleshed blood human being, why not.

The company's case was Khan Properties Ltd v Commissioners for HMR&C [2017] UKFTT 0830 (TC)