Who Should Pay? And, What is Fairness?

Who Should Pay? And, What is Fairness?

I have written Blogs earlier, about problems which can be caused by rogue employees – by co-incidence they both involved the huge Supermarket Company WM Morrison Supermarkets PLC.

In the first case, Morrisons had to pay out compensation because a petrol pump attendant [that shows my age – let’s say, a man who worked at the till of a petrol station] went mad – or maybe he had been mad for years, but he suddenly let it show and attached a customer first with his fists, knocked him down and then kicked him.

Here is my Blog about that – Link Here-

The reason Morrisons had to pay compensation is because in England there is the concept of “vicarious liability”. An employer is liable to pay compensation for the consequences of civil wrongs “Torts” committed by its employees when they are working.

The thinking is that employers should recruit proper responsible people, and also supervise their actions sufficiently closely so as to ensure they behave well.

For example. if there is a bully in the office, harming co-workers lives and their mental health then an employer is liable to compensate for the harm done and also if the behaviour is not brought to an end.

When a wrongdoing is done by someone obviously at work, vicarious liability is relatively easy to identify.

But the law is imprecise at the edges. What if this petrol pump man had attacked a random person whilst on a bus on his way to work? Or whilst on holiday in Spain – paid for out of savings from earnings at work. Presumably, no vicarious liability.

What if a lorry driver carelessly runs you over, whilst making a stop at an ATM, half a mile from the route his employer had set him? Vicarious liability.

What if a lorry driver scheduled to drive from Leeds to London, carelessly runs you over at an ATM in Newcastle where he is skiving off to visit his girlfriend? Not Vicarious liability. He is too far removed from what he is employed to do, he is on a “frolic of his own” as the law calls it.

Another facet of the law surrounding the concept of vicarious liability, is that the motive of the employee is irrelevant. So if a bully wants to see fear, or a mad petrol kiosk attendant wants to see blood, or a lorry driver is simply careless, – doesn’t matter.

Say it again – motive doesn’t matter.

The second time Morrisons have been enmeshed in the complications of Vicarious Liability, is the one I blogged about here – Link here.

Quick summary:- Andrew Skelton worked for Morrisons as an internal auditor. He had access to personal data including bank details, NI numbers, phone numbers and possibly a lot more, about the employees of Morrisons. At least 5500 of them are represented in the Court claims but there may be over 100,000 of them according to some reports.

His problem was that Morrisons didn’t like him using their premises and computers to run his own “e-commerce” business when he was being paid to work for Morrisons.

I know – These prickly employers eh?

Having got into a lather about this sheer totalitarianism – the outdated mindset of Morrisons that their employees ought to spend their time at work attending solely to the affairs of Morrisons – he cooked up a cunning plan.

He downloaded all of the sensitive data to which he had access, and put it onto memory stick and took it home

He waited several weeks out of caution then he published all of the data online.

He is in prison now serving eight years. Good.

And Morrisons have been found liable to pay compensation to his victims. Vicarious Liability.

But the case has now been taken to the Court of Appeal by Morrisons. The argument they put forward is that this case is a very unusual one, because Skelton was primarily acting not in order to hurt the employees of Morrisons, who might suffer distress and worry and also perhaps financial loss to computer hackers – but only in order to hurt Morrisons and its business.

Skelton knew about the law of vicarious liability. He knew that Morrisons would be found liable for the consequences of this actions and he acted in order to maximise the financial loss to Morrisons.

So his crime was intended to hurt Morrison, and it has certainly worried one of the Judges of the previous hearing that the Court itself is being required find Morrisons liable vicariously and thereby, to do the criminal’s dirty work.

The spectre has arisen of the possibility of a new kind of financial terrorism.

At the latest Appeal hearing the Court has declined to change the basic rule that “Motive does not matter”. Here is a link to the hearing transcript – Link Here-.

Morrisons will have one more go I expect, an appeal to the Supreme Court.

What does the team think? The law is I suppose an attempt to structure acceptable behaviours. It is not true to say that the aim of jurisprudence is to make life fair for everyone, but certainly fairness comes into it, if only because manifest “unfairness” might be hard to define but easier to recognise, and ultimately can lead to public dissent, rioting and revolution.

Not that one person’s fairness is not another one’s unfairness. Certainly Morrisons feel it is unfair, that they may be facing pay-outs of millions for the behaviour of a criminal whose only aim was to make them pay out millions.

But the people whose data, which should have been kept safe, has been published openly onto the internet, will also feel it is unfair if Morrisons’ Appeal is successful, because that will mean that the only redress will be whatever they can get out of Skelton, who is in jail. So good luck with suing him for millions he presumably hasn’t got.

It seems to me that breaches of GDPR need to be taken out of the scope of the laws of vicarious liability.

If Parliament thinks that Morrisons have actually done something wrong [and remember, the Courts have enquired fully and don’t think it has] then Parliament should define that culpable behaviour.

Seems to me also that the whole concept of vicarious liability was originally to enable co-workers or the public to get compensation when they otherwise would not have been able to, in the context of a world which was much simpler and when the idea that a malicious keystroke on a computer could have consequences of the sort now facing Morrisons, was the stuff of science fiction.

But it is not science fiction now, and in my view we really don’t want to encourage economic terrorists whether idiots like Skelton or more ideologically driven idiots or enemies to get into jobs where they can bring down our country’s biggest economic engines, now do we?

That’s a bit of a gloomy thought. Cheer up – Link Here-

Remember, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com and notary@atkinsonnotary.com.
Or alternatively please telephone on 0113 8160116 or 07715608747. Please also feel free to visit our website http://www.atkinsonnotary.com

Enduring Powers. Good Idea? Bad Idea? You Decide.

Enduring Powers. Good Idea? Bad Idea? You Decide.

This week I am thinking about Enduring Powers of Attorney. Are they a good idea?

The point, as they are intended, is that creating a power of attorney will enable another person you know and trust to look after you both physically and financially if a time should come when you are unable to care for yourself.

So most people think these are documents to be prepared in old age, when you are old and doddery but still with few marbles left.

But the expression is, – if you want to make God laugh, make plans.

So anyone who thinks that they have a good fifty years left before they need to think about making an Enduring power of attorney has never heard of road traffic accidents, brain damaging strokes, early onset dementia – and knows that they will for ever continue to enjoy playing Rugby or skiing off-piste with all the benefits of a charmed life immune from disaster.

That being nonsense, right there is the argument for making an Enduring Power of Attorney today, however old you are.

So do it today, yes?

Or, on the other hand, not?

You may have seen the remarks of the senior judge of the Court of Protection Denzil Lush, the subject of my earlier Blog – Link Here- who surprised many last year when he said that he personally would never give an Enduring Power of Attorney to anyone.

His reasoning was, in my translation, – if you choose your best mate or near relative to be your Attorney when you need one, you are doing so in many cases perhaps too thoughtlessly.

“Will you look after me if I need a carer?” is a question inviting the answer –”Yes, We’re mates, of course I will”. Same with “If you win the lottery will you send a few hundred thousand pounds my way?” – “Course I would mate”.

Perhaps the realities of either question are not really being considered. In neither case is the likelihood of winning the lottery, or going into a severe decline, actually taken too seriously.

So when the Attorney is needed to start actually caring maybe ten years after the Deed was signed -– s/he might be a senior Director of a Business two hundred miles away with a busy life, their own kids and family to care for. They may feel honour bound to try to do the job, but they may no longer be the right person. And yet if the Power of Attorney has named them, the Court of Protection will feel its hands are tied, and will appoint them as Guardian because that is what the Grantor – who is now “the Patient” wrote down.

Or worse, just as a newly lottery-enriched millionaire may now feel that perhaps the thoughtless promise to share the win was, with hindsight over-generous, so the appointed Attorney may find that with hindsight the thoughtless promise to help out is a source of regret or even resentment.

What Judge Lush is saying I think, is that he would back the Court of Protection nine times out of ten, to appoint a more appropriate Guardian at the time care is actually needed, against the choice made by an actual patient before disaster struck.

And a perusal of the decisions of the Court of Protection certainly show that our society is not entirely made up by selfless saints.

Here is one – Link Here- the dry unemotional words of the Court report spell out the shocking facts very clearly. “He begrudges her even having her hair tinted”. Nice.

If you like your news more tabloid, here –Link Here- is the newspaper coverage.

So here we have a son who is basically thinking, the patient (my Mummy, she used to be) is a vegetable, why is she hanging on to life and incurring nursing home fees when I could be the owner of all of her money.

So he has decided to help himself to as much of her money as he can get his hands on.

One point which this report does seem to make is that an Enduring Attorney must look after the finances of the patient properly. So in this case, Martin was not entitled to pocket assets from the estate of his mother, who needed every penny to provide for her care.

But having said that, the duty of the Attorney is to act in the best interests of the Patient overall and not necessarily so far as possible to keep her money in the Bank.

Many people appear to have been surprised that in another case, the Court has allowed an Attorney to pay himself Six Million pounds of his mother’s money. The case report is here –Link Here-

The facts seem surprising at first glance only I think.

In the first case the lady’s total estate was worth well under £325,000.00 and if the patient lived for eight years more there would be nothing left to pay her nursing home. She needed every penny and the Attorney should be viewed as behaving disgracefully – The Judge says his behaviour was ”repugnant” – for taking some £120,000.00 to spend on himself.

In the other, the patient owned assets of over £11 million, was living in comfort with a life expectancy of less than five years. She had been financially astute before struck by dementia and had herself earlier given away a million pounds or so to take advantage of Inheritance Tax gift allowances. She did not need the six million, and if she had been able to, the Court agreed that she would have wanted to make the gift of it now and thereby avoid a tax bill on death after three years, potentially saving around £2.5 million pounds in tax.

In summary, you have to make your own mind up whether Judge Lush is correct. He says, don’t make a Deed of Power of Attorney, just rely on the Court to look after you and appoint a Guardian when you need one.

But he has seen, more than anyone else perhaps, so many of the cases which have gone wrong. Certainly many many cases have been just fine, if that word can describe a situation which is always very sad.

So make a decision, and if you’re going to make a Deed, do it before it’s too late. Song –Before It’s Too Late-

One conclusion that does seem to me to be inescapable, is that the Courts are very expensive and as has been the case through history, it is much easier to use the services they provide if you have a few million in the Bank.

Here at AtkinsonNotary we don’t charge millions, so, Remember, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com and notary@atkinsonnotary.com.
Or alternatively please telephone on 0113 8160116 or 07715608747. Please also feel free to visit our website http://www.atkinsonnotary.com

Marriage and Civil Partnership – Changes Coming. A Notary Muses.

Marriage and Civil Partnership – Changes Coming. A Notary Muses.

If we look back a hundred years – so within living memory – it was quite clear what being married meant. There were two parties, one of them a man and the other a woman. The man was the Head of the House. The woman was legally subject to the control of the man. All money she might have earned was treated for tax purposes as money earned by him. The land and property the woman might have owned before she married, became the man’s on the marriage day.

So quite apart from the illegality of homosexuality in England at that time, the idea of two persons of the same sex being married to each other simply had no meaning. Marriage was about money and control, from a legal point of view.

By year 2000, all of the above had gone. Except that a marriage could still only take place between a man and a woman.

What a marriage actually was legally and indeed politically, however, had changed completely and today it seems to me to be – what? A public statement of commitment? A romantic ideal? A tax saving relationship? Something to do with religion?

Let’s just stay away from metaphysics and keep our eyes on the money.

Marriage is a tax saving relationship. Income tax marriage allowance, some pensions benefits on death of a spouse, the ability to share assets providing capital gains and thereby doubling the tax allowance, and huge Inheritance tax advantages – all available to a spouse or widow/er.

So in 2004 all of these tax advantages were made available to same-sex couples too. It had seemed to prevailing opinions, unfair that these very practical benefits should be available to parties to a marriage but unavailable to people who were totally committed to each other, but could not get married for reason of gender.

So civil partnerships for same sex relationships came into being.

That’s all fine then.

But things moved on. Public opinion and human rights rules persuaded the lawmakers that marriage should be available to everyone and since 2014 same-sex couples can marry.

OK that’s fine too.

But it has created an oddity. Now, same-sex couples choose to marry, or choose to become civil partners. But – An opposite sex couple can marry, or stay single, but they cannot become civil partners.

It might seem obvious to many that civil partnerships were intended to allow a form of marriage which did not offend too much those of more traditional views and sensibilities. That didn’t last long did it?

But surely, now that anyone can marry, there is really no remaining point to the whole civil partnerships thing? A legal creation which has outlived its need or usefulness?

Trouble is, not everyone who is a member of a civil partnership actually wanted to get married – and now they are quite happy as they are. And if civil partnership were to be abolished? Well it can’t happen retrospectively can it? And whilst possible, it might well be seen to be a retrograde step if a Government were to announce that after a future random date no further civil partnerships could be entered into.

So whether or not this is counter-intuitive, the plan announced now by Theresa May is not to abolish civil partnership but, quite the opposite, to extend them so that a couple who are mixed-sex can become civil partners.

Who will do this? That is a matter for speculation, a game we can all play. Perhaps, couples who are “anti-religious”? Anyone else?

Let’s have another look at those tax advantages.

I suspect it does happen, that men and women presently marry each other because they are close friends or maybe run a business together, even though they live in separate homes or even separate cities. But many others in that position would be put off by the social presumption that a marriage must be a sexual relationship.

And above all, remember in England that actual marriage, when entered into by opposite-sex partners, is voidable – can be annulled – on the grounds of “non-consummation”.

The other two arrangements – Civil partnerships between same sex couples and Marriage between same-sex couples – cannot be annulled for this reason. Whether or not the partners in these arrangements have sexual intercourse is of no concern to the law.

It seems to me unthinkable that the proposed future civil partnerships, between opposite sex couples, will require a sexual relationship.

Which if I am correct, opens the door to opposite-sex civil partnerships being entered into between a man and a woman who would not in a million years have sex with each other, but who have a close relationship whether emotional or financial, and who would like to be able to leave large sums of money to the survivor after first death, without having any tax to pay.

Maybe a widow and a widower who certainly don’t want to marry again, but who have found companionship, a mutual love of spending time together.

So Hooray

One last thought – Perhaps the people who might most benefit from being in a civil partnership and might be the keenest to enter into one for tax reasons, are still unable to do so.

Just as a brother and a sister cannot marry each other, so a brother and a brother or an uncle and a nephew– and a sister and a sister or an aunt and a niece – are excluded from same sex civil partnerships. I cannot believe that this exclusion will be removed from opposite sex [brother and sister, uncle niece etc.] civil partnerships either.

So Boo.

Let’s wait and see whether it happens. Seems to me the Government has more on its plate to worry about just at the moment.

Here’s a song for couples

Remember, if you require our services or if you have any queries on any of the services that we offer then please do not hesitate to email us louise@atkinsonnotary.com  and notary@atkinsonnotary.com.

Or alternatively please telephone on 0113 8160116 or 07715608747.  Please also feel free to visit our website http://www.atkinsonnotary.com