Hold On Boss!

If you reckon your employer is hell-bent on firing you, see if you can devise a way to distract them until 6 April 2017. That's because the amount of compensation you can be awarded in the case of unfair dismissal (and other unlawful actions) gets a 2% retail prices index increase for prohibited steps taken on or after that date. The increases are given force by the Employment Rights (Increase of Limits) Order 2017 SI 2017/175.

Here is a flavour for what may be in store. The unfair dismissal minimum basic award rises from  £5,853 to £5,970 and the maximum  unfair dismissal compensatory award is increased from £78,962 to £80,541. The maximum amount of a week's pay which is used for calculating redundancy payments and for various awards including the basis or additional compensation awards for unfair dismissal goes up from £479 to £489.

Major Service Charge Win by Lessee

You can usually challenge the reasonableness of a residential service charge under a lease, to the property tribunal. But what's the score when the service charge relates to improvements as opposed to repairs which the lease has given the landlord a discretion to carry out? Can you attack the landlord's decision to carry out these improvements at your expense? Things are better than many thought.

In a case which started in a tribunal but has just been decided by the Court of Appeal * the part of the service charge under attack was for the replacement of windows and cladding to 10 blocks of facts at the IvyBridge Estate in Isleworth where the landlord is the London Borough of Hounslow. The Estate comprises council flats and houses and some properties which have been bought under long leases  by former council tenants under the right to buy scheme. One lady got a demand for a cool £55,000 as the required charge from her for the new windows and cladding and some other work. The windows had not been in disrepair but suffered from an inherent design fault which was a potential safety issue. The fault related to a hinge failure. Replacement hinges were available at a cost of £140 a pair but the problem would have eventually recurred with new hinges. So after the necessary consultation with lessees, the council decided to replace the windows and deal with the inevitable resulting replacement of cladding as well. The aluminium windows which were used will have a life span of twice that of the UPVC ones which might have been used at a lower cost. 

Our aggrieved lady (with other lessees) attacked the council's decision. The Court of Appeal ruled that improvements such as these - and they were to be classified as such - had to be approached differently to repairs which the council was obliged to carry out. With improvements, a landlord had to take particular account of the extent of the interests of the lessees who would be charged up, their views on what was proposed and the financial impact of proceeding. It was not simply sufficient to rely on the right to recover the cost of repairs under the lease as a justification in itself for embarking on a scheme of very expensive work. 

The landlord was not bound by the views of lessees but where it was exercising a discretionary power at the lessees' expense, it made sense that the lessees' views should be more influential than when repairs were concerned. The landlord need not embark on an investigation into the finances of particular lessees. However, in broad terms,the landlord was likely to know what kind of of people were lessees in a particular block or estate. Lessees in a luxury block in Knightsbridge might find it easier to cope with a bill for £50,000 odd than lessees of a former council flat in Isleworth.

The council had not acted as it should have done. The result is that only part of the service charge will be recoverable from our lady and the tribunal will now decide how much.

* The case is London Borough of Hounslow v Waaler [2017]EWCA Civ 45

Forensic Test Evidence

Randox Testing Services specialises in forensic toxicology and drug and alcohol testing. If you have been convicted of a criminal offence in a prosecution which relied on forensic evidence then that evidence could have been provided by someone at Randox. Or if you have been involved in family proceedings in which there was an issue about whether you were or had in recent times been consuming controlled drugs or too much alcohol, evidence on that based on a body sample (probably hair) could have been provided by someone at Randox.

Police have arrested two Randox employees as part of an investigation into whether lab workers deliberately manipulated data to suggest positive results. It is understood that Randox itself called in the police after it became aware of a problem with one case that led to an internal investigation. The police are reviewing up to 500 criminal cases which may have involved Randox scientific evidence.

In any criminal case, a conviction would not have been based exclusively on Randox evidence. Other evidence would almost certainly have been part of the prosecution case but the forensic evidence could have been crucial.

If I had been convicted on the strength of Randox forensic evidence and still maintained my innocence or if I had had a family case go against me on the strength of Randox evidence and was maintaining that the evidence was wrong then I would be seeking legal advice to see whether or not and, if so, how my case could be reopened.  

It's Corks Out on Mobile Homes

There are around 85,000 mobile homes on about 2,000 sites which are governed by the Mobile Homes Act 1983. A vast number of occupiers have signed agreements in a standard form which is recommended by British Holidays & Parks Association whose logo is to be found on the document.

This standard form agreement says that that in addition to the pitch fee and general or water rates (or both) the occupier must pay to the site owner "charges in respect of electricity gas water telephone and others services." OK, but does that entitle the site owner to extract a general service charge from an occupier such as for reading gas and electricity meters, supplying gas and electricity to communal areas, having to call out electricians to resolve problems, maintain a computer program and generally dealing with administration? No, ruled the Court of Appeal* last Friday. Where this particular form of agreement applies, the site owner cannot pass on to the occupier any charge for these services but only charge up the occupier for what they have paid out to third parties for providing the utilities.

The Court of Appeal decision will not prevent site owners from seeking to collect payment for what has been ruled out, as part of the pitch fee and the standard agreement allows an annual review of the pitch fee. But an occupier will be able to challenge an increased pitch fee and take the challenge to tribunal where the real extra expense incurred by the owner will be under careful scrutiny. They would have to show that the charges in question were unreasonable.

As for occupiers who have settled demands for payments which, according to the Court of Appeal's ruling, were not due, the money overpaid could be claimed back with interest and going back for up to six years.

* The case was P R Hardman & Partners v Greenwood and another [2017] EWCA Civ 52

The Key to Divorce

By now you will know about the wife who was yesterday appealing against a judge's refusal to grant her a divorce on the ground of her husband's alleged unreasonable behaviour. The appeal court's judgment will be given at a later date.

There can be no divorce under the law of England and Wales unless the party who brings proceedings has grounds which they have to prove and so it is with same-sex marriages as well. Dissolution is a civil partnership's version of divorce and this works in a similar way.

The opposite-sex divorce grounds are adultery - the other party's, not your own - unreasonable behaviour, the other party's desertion lasting for at least two years or a period of separation which can be two years if the other party agrees to the divorce or otherwise five years.

If a divorce is denied in yesterday's case, then is the wife locked into the marriage for ever? Unless she has some other ground against the husband she would have to wait for five years to elapse from separation. The husband could only then scupper a divorce if he could satisfy the court that divorce would result in grave financial or other hardship to him and it would be wrong to end the marriage. This is a notoriously difficult defence to succeed with.

Separation whether for two years or five years can be a successful ground even where separation has taken place under the same roof - the parties have continued to live in the same home but effectively as separate households. No sex, no eating together, no socialising together etc. 

For much more and the pros and cons of which ground to rely on, see Breaking Law at chapter 48.

Court Fees: New Regime

There are some important changes to the procedure in civil cases which mainly burst into action on 6 April 2017. The Civil Procedure (Amendment) Rules 2017 (SI 2017/95) are to be cursed or thanked, as the case may be.

I previewed the most impacting procedural change in my 8 December 2016 post Civil Hearing Fee Refunds Scrapped. The new rules cater for the change with this one coming in to force on 8 March 2017. The hearing fee is now called the trial fee. It will become payable by whoever is bringing the claim (or by the defendant if the claim has been knocked out and the case is going ahead on a counterclaim only). And it will be payable later in the case which will generally be by four weeks before the trial date. That's good. What isn't so good is that if the case settles in the run up to the trial, no part of the trial fee will be refundable as is presently the position. So you might be saying to your opponent something like -

"Be sensible. I am just about to pay the trial fee to the court. If you are going to settle with me, do it now. That's because once the fee has been paid, I won't get any of it back from the court should there be a later settlement and the trial be avoided. This being so, I will have to charge you up for the trial fee as well."

If the trial fee is not paid on time - and the court will notify you of the date for payment - the claim will be automatically struck out and you will have to pay the costs of the other side, unless the court orders otherwise. No period of grace and no reminder. It will be open to you to apply to the court for forgiveness and for the claim to be reinstated on condition you pay up or obtain remission (help with the fee). You certainly would not be able to bank on the success of such an application.

The new scheme for trial fees will NOT apply where before 6 March 2017 the court has notified to you the date of the trial or a trial window (the period during which the trial will take place).

Other changes which are somewhat technical and may send you to sleep unless you are a lawyer (or married to one in which event they will certainly send you to sleep)-

• the pilot scheme for legal advisers (barristers or solicitors) to deal with some of the more straightforward court box work is made permanent and tweaked.
• where costs budgeting applies in multi-track cases, the court is empowered on a detailed assessment to cut down the costs which were incurred before a costs management order was made notwithstanding that no point was taken on them at the costs management conference and the court can say nasty things about how high they are even at any case management conference, whether or not it makes a costs management order, and what is said can be taken into account on  a detailed assessment.
• if a case which started its life on the portal is later allocated to the multi-track, the costs will not be limited to fixed costs.

You can wake up now.

John Lewis Returns

John Lewis has changed its returns policy as from 1 February 2017 by reducing the return period for goods which are not faulty from 90 to 35 days and, frankly, I don't blame them! This change, however, cannot affect purchases made before 1 February 2017 for which you have the contractual right to rely on the longer period. The returns info given online does not specifically say this.

For online purchases we are told in online information that the product should be returned within 35 days of receipt of order but the terms and conditions which follow state that John Lewis would "like" the return to be within 35 days which is hardly a 'must' and leaves open an argument that 35 days does not have to be adhered to. 

The information online about store purchases indicates a 'must' at 35 days although one part says time runs from receipt of order and another part says that time runs from purchase or receipt of order so you ought to be able to rely on 35 days from receipt if later than the date you made the purchase.

I put the pre-1 February and 'like' points to John Lewis. Here is what they have told me today-

"Over 90% of our customers already bring unwanted items back within 35 days of buying the product and 85% were unaware of our 90 day policy so this change will affect a minority of our customers. We are communicating the new 35 day time frame at tills, in online delivery parcels and on till receipts. All Partners are fully briefed on when the change began and will check the date on receipts. We're also operating a grace period for a number of weeks which is why we have used the word 'like' for now."'

Rights of cancellation for distance purchases (see Breaking Law at chapter 39) are unaffected.

Bankrupt? What Happens to the Car

When it comes to bankruptcy, some consequences are nice and others are not so nice (see Breaking Law at chapter 35 - and if you haven't bought the book yet, doing so will not bankrupt you). 

One of the nice - and merciful - consequences is that you get to keep property which is necessary for you to use in your work or business. And that may well include a vehicle although if the vehicle is valuable your trustee in bankruptcy (the official receiver or whoever) may require you to replace it with a cheaper alternative.

But say the vehicle is on HP? The Court of Appeal ruled on what was to happen in that situation in a case last Friday*. The HP agreement will almost certainly provide that if you are made bankrupt then the finance company can terminate it and repossess the vehicle and if the agreement said anything else or it did not repossess then I would eat another of my wigs! However, the agreement could well have  a benefit to someone other than the finance company because the value of the vehicle might well exceed what the finance company is owed? Who would be entitled to that excess if the vehicle was a tool of your trade? According to the Court of Appeal, not you but your trustee in bankruptcy, for the benefit of your creditors. 

* The case is called Mikki v Duncan [2016] EWCA Civ 1312 

Breaking Law v Customer Services

Regulars will know that I have been having my differences with Waitrose and Marks & Spencer. Perhaps I am misguided but I thought you would want an update. Or may be not. Here's one anyway.

Let's start with the Waitrose car park clock which cannot tell the time. See Incorrect Car Park Tickets and my Bonce: "Dear Waitrose" post on 18 January 2017. Here's an extract from my latest exchange with long suffering Sam from the Waitrose customer service team.

From: STEPHEN GOLD 

Sent: 21/01/2017 16:00

To: customerserviceteam@waitrose.co.uk

Subject: Re: Car Park clock at Richmond, Surrey store 

Dear Sam

What do you think this is? A joke? Well, in a way it is but a sick joke. It is my Waitrose, Richmond, Surrey car park ticket issued today. Issued at 11.22 (am) as it says? No, of course not. It was issued six minutes earlier because this is not any ordinary ticket. It is a Waitrose ticket. It establishes that you are continuing to mislead customers to their potential detriment in the way I have repeatedly sought to explain to you and it suggests that Waitrose does not give a fig about this and/or cannot on the whole planet find an engineer who knows what they are doing and/or refuses to dip into their vast pockets and replace a system (or part of it) which is not fit for purpose.

I take it that your senior management has still not strained themselves to come back to you. Are senior management going to tell me what action they are taking by 4pm on Monday next 23 January 2017? Among other things, I would wish to be satisfied that pending any reasonably satisfactory action proposed  you will cease making any charge for the use of the car park until the action has been implemented. If the matter is not resolved then I will refer it to trading standards.

John Lewis must be turning in his grave.

Kind regards

Stephen (Disgusted) Gold

From: STEPHEN GOLD 

Sent: 25/01/2017 17:14

To: customerserviceteam@waitrose.co.uk

Subject: Re: Car Park clock at Richmond, Surrey store 

Dear Sam

I have not heard from you further but found today that the barriers at the Richmond car park were raised thereby enabling customers to park free. Is this as a result of my representations or has another fault with the system emerged? Will the no-charge position continue until the clock/ticket no longer deceives?

Kind regards

Stephen Gold

On 26 Jan 2017, at 07:56, Waitrose Customer Service wrote:

Dear Stephen

I made Marc aware at the branch. He explained that he would be looking into it. 

I will let you know as soon as he provides with an update. 

Kind regards 

Sam  

Waitrose Customer Care

From: STEPHEN GOLD 

Sent: 27/01/2017 15:12

To: customerserviceteam@waitrose.co.uk

Subject: Re: Car Park clock at Richmond, Surrey store

Dear Sam

The clock is eight minutes slow today and nobody is telling customers.

This is shameful and my conclusion is that Waitrose does not give a damn about this. 

If there is any real reason why anybody at Waitrose thinks I should not involve trading standards, please let me know what it is by 4pm on Monday next 30 January 2017.

Kind regards

Stephen Gold

On 30 Jan 2017, at 09:28, Waitrose Customer Service wrote:

Dear Stephen, 

Thank you for your email. 

I have spoken to Marc again this morning. 

He has explained that two partners are currently working on the small technical issue that there is with the machine. They hope to have it resolved soon. 

Kind regards 

Sam Mansfield 

Waitrose Customer Care

From: STEPHEN GOLD

Sent: 30/01/2017 12:36

To: customerserviceteam@waitrose.co.uk

Subject: Re: Car Park clock at Richmond, Surrey store 

Sam 

But you are continuing to allow customers to deceive and you are not alerting them as you said you would. What do you, senior management and  Marc have to say about that? Let's have a straight answer. No dodging. No shutting eyes to what is going on.

Regards 

Stephen Gold

On 30 January 2017 at 13.20 Waitrose Customer Service wrote:

Thank you for your email Stephen. 

I'm afraid that it is the branch's decision as to what they do and say to customers. 

I have offered them my and your feedback but at the moment they are just focusing on fixing the problem. 

Kind regards 

Sam 

Waitrose Customer Care

Oh dear. Well, I'll be back there very soon with my ever-right watch and see what's going on. I know I have threatened trading standards and you should never make a threat unless you intend to implement it or you look daft and who wants to look daft. So we may have to see what trading standards have to say....if they have time!

Next up, enter M & S. I don't like their greeting card price labels where pence are involved. See my post On the Cards: M & S Price Labels  on 9 January 2017.

On 21/01/2017 16:16, STEPHEN GOLD wrote:

Dear Conor

I refer to your message below*. I would be interested to know the outcome of the internal investigation and review.

Kind regards

Stephen Gold

* see previous post

On 22 Jan 2017, at 13:53, M&S Service Team <no_reply@customersupport.marksandspencer.com> wrote:o

Hello Steven

I hope you're well. Thanks for getting back in touch.

I'm afraid we wouldn't be able to give you any information about the internal investigation because it's business sensitive information. However, I would like to assure you Conor has raised this our suppliers and marketing teamand they are reviewing this.

Kind regards

Lucy  

Retail Customer Services

Your M&S Customer Service

On 22 January STEPHEN GOLD wrote

Dear Lucy

I am not too bad, thank you but will be much better when M&S ceases misleading over card prices. No doubt, so will you as it will get rid of me!

The last thing I would do is seek to extract commercially sensitive information. However, I would not regard the relay of a decision as to whether or not you are going to put a stop to a practice which I regard to be prohibited by law as commercially sensitive.  I will obviously find out for myself pretty soon by looking at your card displays!!!! I was simply interested to know whether you were going to do the right thing or whether the appropriate course would be for me to refer the matter to trading standards. Bear in mind that I first raised the issue with you nearly one year ago and, to be frank, it rather looks to me that you will not be doing anything to change your practice unless compelled to do so.

Kind regards

Stephen Gold  

What do you think is likely to happen? Answers, please, on a postcard but check the price of it carefully before you purchase, perhaps with a magnifying glass.