GDPR – One Year On. The News? Who’s asking, It Might Be Protected Information?

GDPR – One Year On. The News? Who’s asking, It Might Be Protected Information?

“Do you know of a General Data Protection expert who could advise me and my business about it all?
“Yes, I certainly do.
“Oh thanks, so tell me, who can help me then?
“No, I can’t tell you who it is, that’s protected data.”

I trust that old chestnut has you rocking with laughter. (Lawyers’ jokes are not for everyone perhaps.)

I’m strictly a bit late for the “one year on” blog cliché. Still it’s only July 2019 and the implementation date of GDPR was 25th May 2018. So, what’s been occurring?

The first effect for many companies was a worried revision of their own processes and systems. Many of them were hampered by a less than clear understanding of what the new Data Protection Regulation actually said. Or Meant.

OK? What does it say? – Here it is for you to read – Link –

I guess you probably are not going to do that, now that you can see the length of the Regulation. If you have read it, you will see that the above is the European overreaching regulation. It includes a requirement that the member States must their own rules of implementation.

In the case of UK, this is the Data Protection Act 2018 – Link Here –

So let me guess, you’re not going to read all of that either.

It does turn out to be a bit of a problem, that by and large the Laws of this Country and most others are just too damn long. How can we all obey what we can’t be bothered to read and wouldn’t clearly understand if we tried?

Take email marketing. It is not made illegal by the GDPR. But if it is done, it must be done in accordance with GDPR. So, again, how can we know what to do if the wording is impenetrable?

Many companies, including the well-known Wetherspoon pub restaurant chain, simply decided they couldn’t be bothered with the whole game of soldiers and deleted their entire customer marketing database.

Others meet the problem by deciding that if some of the data they hold is subject to the Regulation, then they will be OK if they never share any of their data with anyone. Not the most helpful thing in my line of work. I am often instructed to assist a student seeking to work abroad, by checking then notarizing that their University Degree is genuine. If the degree was from a USA University, I have just phoned up and asked the question and the receptionist has checked the computer and told me the answer.

In England, not so easy! “GDPR, innit.”

So it’s a year on from the implementation of that Regulation you’ve heard about.
The English enforcer for the Regulation seems to be the Information Commissioner’s Office and its website is showing a list of the enforcement actions it has taken.

Here is – the link-

I don’t know about you but there seems something oxymoronic about the information revealed above.

It enables you and me to browse through it without any business reason to do so, perhaps whilst bored at work, to learn of the misdemeanours of others.

Yebbut, one of the things we can read about, is the prosecution of a person Wendy who browsed through her employers’ database “without any business reason to do so” and read records of anti-social activities of others.

It doesn’t say why she did it, chances are that she was bored at work and passed the time reading about the misdemeanours of others? Fined £300.00.

Anyway, the page lists various examples of behaviour which will get you in trouble if you do it. Many are the sort of thing you would expect to get people into trouble. A schoolteacher moving pupil data to his home computer. A medical centre worker accessing details of patient health records. An employee copying the employer’s computerised customer list – perhaps in contemplation of setting up in competition and canvassing those customers.

Of course the majority of breaches are more what you might expect on a larger scale – unsolicited PPI phone calls, unconsented releases of customer data to third parties some of them involving many million individual people.

And the page does also give a highlight to the fact that enforcement notices but not fines have been served against the Met police, and HM Revenue and Customs.

It seems that the use of computers to assist the Met in coping with gang crime in London goes beyond what is reasonable.

Your view? – On the one hand, gangs very bad, catch and prosecute gangs very good.

On the other, how many of us support blanket facial recognition and CCTV everywhere as China seems to be pursuing – too much computerisation very bad?

With HM Revenue & Customs the breach was a lack of clarity in obtaining “consent” to the implementation of voice recognition software on the helplines.

Neither the Met nor HMR&C have been prosecuted or fined.

Again, it seems me counterproductive anyway to fine the Police, who don’t generate any money, or the HMR&C who do generate it or at least collect it, but spend it on Hospitals and Benefits and all of the Public Infrastructure that is so hard up.

But what would or should the Information Commissioner do, if ever there is a breach by HMR&C which in their opinion is so blatant as to deserve a swingeing fine?

The rules allow imposition of a fine of 4 per cent of global turnover. I don’t know whether the Revenue has any turnover at all. If it does, presumably, that’s the amount it collects. Which in year ended 2018 was over £605,000,000,000.00.

Although even if there were a fine of £24 billion, where do fines go? Into the general tax fund. Not much point as an exercise, fining the Taxman. As you were then, carry on.

None of the above relates to hackers. But as recent cases show, the activities of hackers have resulted in breaches of GDPR which have far outweighed the seriousness of breaches caused by bored employees, or by ill thought-out systems.

Two cases tower above the rest – those of Wm Morrison Supermarkets, and just yesterday, British Airways.

In the first case, a malicious employee with a grudge against the supermarket released protected information about 5,518 workers there. Morrisons have been found by the ICO not to be in breach of its protection compliance obligations. They had done all they could pretty much, apart from requiring every computer operator to work in tandem with another in order to keep each other honest. The problem there was not in inherently weak computer system vulnerable to hackers outside the building. Even so they are still fighting to avoid having to pay damages.

In the second, -Link Here – British Airways is alleged by the ICO to have failed to maintain the level of computer security required of it by the GDPR.

What is their fine? Over £183,000,000.00.

ICO can point to the fact that the maximum penalty could have been in the region of £488,000,000.00. Still a little salty though.

The hope is that an unbelievably huge fine like this will start a rush to improve systems across industry as a whole to the immense benefit of the consumer. Or…..The cynical may simply view this as the first of many such monster fines, each providing a boost to the Government’s Consolidated Fund at huge cost to the long term viability and competitiveness of British industry.

My own unofficial poll indicates that the average citizen of Leeds is a firm believer in GDPR, strongly determined to keep their personal data a secret to themselves.

Why else do they never indicate their intention at roundabouts?

Here’s a song –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

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Bang the Drum. Make A Will. Number Umpteen.

Bang the Drum. Make A Will. Number Umpteen.

There are one or two drums that I have banging from time to time in my Blogs. It may be that my readers have taken on board all that I have been saying about – Consents for your Children to travel abroad without you, or The Need to get your prescriptions notarised if you are taking your medication with you on holiday, particularly to Russia, – or How to ensure that deeds and papers are properly expected by companies so that the Company is bound and the Director is free from personal liability, and so on.

And quite often I try to encourage you to MAKE A WILL.

Even so, I bet that every one of you has either not made your own Will or else knows a friend who has not.

Apart from one person I know who appears seriously to believe that he is being kept alive only by the magic of not having made his Will, everyone else I speak to does acknowledge the importance of having made a Will. Being “testate”. At least, in principle they do.

But it seems that being fully aware of the importance of something is for many of us not the same as actually doing it.

So if you haven’t – do it today.

If your friends haven’t, urge them to do it today. Not to wait until they feel a bit poorly. I think the idea of – yes I know its’s important but I’ll do it later, – is as inexplicable as the reasoning of  the US motorbike riders who carry a crash helmet on the back rest, not on the head. Do they think – if anything dangerous starts to happen, I’ll put the hat on?

The main problem with making a Will perhaps other than a failure to prioritise, is that sometimes it can be quite difficult to decide what to write. Not the technical writing, I trust you will use a Solicitor for that (see earlier blogs about homemade Wills, there is one – link here –), but actually deciding upon your wishes.

For single persons, or couples in a first relationship whether married or not, matters may be straightforward. But increasingly nowadays, people may be in a second or later marriage, and each party may have children to earlier partners.

And that causes problems. Years ago when I was newly qualified I sat in on a meeting between a solicitor partner and his married clients who were in their sixties and each had children by deceased former spouses. Their first marriages had lasted for decades, the present marriage was very recent.

Each of the clients was very concerned that if they died first, the surviving second spouse should not be in control of all of the money which they presently owned separately. Neither of them wanted to say so out loud. It is embarrassing to say in effect “I don’t trust you”.

But each of them had children, and they clearly wanted to ensure that the matrimonial pot did not end up in the hands of the other spouse’s children to the exclusion of their own, after the death of the second of them to go.

And they both knew from their own experience that – if I die tomorrow my second spouse might marry again. And his/her new spouse might already have kids too. And they might live together another 20 years – people live a long time these days. And my kids might be forgotten by then.

Perhaps not so much of a problem if they had millions to dispose of. But if they had a house and a hundred thousand or so, it’s a poser. Because no one knows how long they will live. Will my spouse need all of the money? –  Answer – Yes s/he will if s/he lives to be a hundred. So we need to leave our money to each other. But what if I die next week and then s/he makes a new Will and cuts out my kids?

Making a Will makes you address this sort of questions, and the fears behind them, and it nearly caused that couple to split up, right there in the office.

Very difficult, and one can see why so many people, even if they do address the question, end up by deciding –  it’s just too difficult let’s pretend we are going to live for ever.

So here is a search you can google – Link Here – it will show you a choice of several newspaper articles and commentaries.

In this case, on purpose or not, Mr and Mrs Scarle had not made Wills. Each had been married before and each had living adult children. Exactly the circumstances in which it can be difficult to decide how to write a fair Will which looks after each other and also shares any money left over after the second death between all of their children and step children.

Tragically the unfortunate Mr and Mrs Scarle were found in their house, both dead. Apparently they froze to death; at any rate the deaths were natural. But they were not discovered until they had been dead for a week or so and in circumstances in which medical experts appear unable to say who died first.

If you haven’t a Will, it is important to know when you died.

Say Mr Scarle died first. OK, his estate if he had less than £250,000.00 (bit more complex if he had more) will pass to his widow. She has afterwards died too, so all of that money plus all of her own money will pass to her surviving children

And contrariwise, say Mrs Scarle died first. OK, her estate if she had less than £250,000.00 (bit more complex if she had more) will pass to her widower. He has afterwards died too, so all of that money plus all of his own money will pass to his surviving children.

Long story short, the children of whoever died first get nowt.

In the very unusual case of not actually knowing who first died, the Law reverts to a “legal fiction”. Called the “Commorientes Rule”, it says, generally speaking and according to the laws of nature, older people have fewer years of life in front of them than have younger people. Old people reach old age and death first, then it is the turn of younger people.

So if someone is 79 (Mr Scarle was 79) and is found dead with someone aged 69 (Mrs Scarle was 69), the legal fiction says that Mr Scarle shall be presumed to have died first

The trouble, or one of all of the troubles, in all of this is that whatever Mr and Mrs Scarle  “would have wanted” for their children if they had made wills, and for whatever reason they neglected, or decided not, to do so, they certainly could not have guessed their cruel fate.

If they had left a will, each to each other, they could at least have hoped that the survivor would have “seen their children right”.

In the absence of Wills, not only shall one set of children definitely not inherit, but a jolly big chunk of their joint money will be spent on Courts solicitors barristers and the whole legal folderol.

I started by saying I’ve said all this before – but I think it’s worth repeating.

Make a Will. Now, preferably.

Here’s a link to a soothing song – I’ve said it once before but it bears repeating, Now –

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

Notary Advice. Worth the Fee?

Question :- It is the job of Notaries to make the preparation and execution of documents for use abroad, as easy as possible. True or false?

Well, true I suppose but sometimes it is the “as possible” bit which needs to be emphasized. Sometimes stuff just is complicated.

Take Limited Companies. Who can be a Director?

At present s. 155 of the Companies Act 2006 says that at least one of the directors of a Company must be a “natural” person. (A natural person is a human being, a corporation is a legal person but not a human being so not a natural person.)

Yebbut, the Government has created the “Small Business, Enterprise and Employment Act 2015” which is not yet the law, but presumably will be one day.

S87 of the 2015 legislation says that “The Companies Act 2006 s. 155 shall be omitted and the following added
“156A Each director to be a natural person
“(1)A person may not be appointed a director of a company unless the person is a natural person.”

So it is clear that the days of Corporate Company Directors are numbered. But today they are fine.

My point is, there is no “common sense” here. You cannot guess what is OK and what is not with Company Law, you have to read the law – and the law can change anytime. What is right today is wrong tomorrow.

Also and perhaps especially in the case of Company Documents there are rules which need to be followed, and you won’t be able to guess what they are. Or if you can once then you are lucky, but you won’t be lucky three times in a row if you are guessing.

It is rare for a successful business Director to be too interested in the detailed requirements of the thousands of rules and regulations which govern the activities of their Companies: no doubt it can be the bane of their lives to be told by their Notary that a document cannot be executed by Fred because Fred is not an authorised signatory.

But if Fred is in charge of supervising the Dubai office, they say, who else should sign a Power of Attorney to assist in the Dubai operation? No. Fred may have a job description as “Middle Eastern Affairs Director” or some such. And the young school leaver may call himself the “Director of Paperclip Procurement”. But these are just job titles. And only Officers of the Company, as defined in the 2006 Act, are authorised signatories.

So the Notary will have to tell that successful business Director [the sbD] that because Fred is not actually a Company Board Director, therefore he must not sign the Deed, because it will expose him to personal liability and will not bind the Limited Company to its terms anyway.

And egos come into this. Sometimes sbDs may consider that their godlike status within the organisation is being challenged rather than enhanced, when being told that Plan A is unworkable.

A fellow Notary has written to say that he recently “had the European Head of a global enterprise email me to ask me what I was going on about when I had suggested to the UK people that they were proposing to execute a Power of Attorney incorrectly.”

He felt as if he was being invited onto the naughty step.

“What are you going on about?”, – bit alarming?

Not quite the same as, “Thank you very much, I nearly made an expensive blunder, you have saved my expensive bacon”.

Here is a case link – click here – to the Katana case.

Basically, a contract was entered into which included an agreement that any dispute arising would be dealt with by English Law.

Trouble was, it eventually was discovered that none of the parties or their advisors actually knew any English Law.

One of the companies involved purported to sign the contract by using as its signatory a person who had been appointed an Attorney of it, under what everyone believed to be a Deed of Power of Attorney. The Power of Attorney however was not a Deed. It was not properly witnessed as a Deed.

No English Notary was involved.

Because the “Deed” was defective, the Claimant’s case was dismissed.

If an English Notary had been consulted, it might have taken half an hour of reading the papers to see that the Deed was defective. I charge £120.00 plus vat for half an hour.
The Claimants dismissed claim was for €65 million

Perhaps I don’t charge enough? HMmm. Only me then?

At any rate, I promise to charge less than €65 million, 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

Travels to Russia? – Prescription Medication? – then this is a must read…

Travels to Russia? – Prescription Medication? – then this is a must read…

Louise writes:-

We have blogged in the past about taking medicines into Russia.  Our latest blog was back in July 2016 (link here) and we thought it prudent to remind our readers of the need to see a Notary if you are wishing to travel to Russia, whether on holiday or business, and are currently needing to take medication(s) which you need to take with you for that trip.

No doubt people might plan a holiday in Russia well in advance, in terms of tickets and hotels, car hire, guide books for sightseeing and the like. Perhaps though, the idea of seeking the online advice of the Foreign Office, or of the Russian consulate website does not occur to them as readily.

And if you are taking regular painkillers or other potent medicines for a chronic condition it may not occur to you that if you open your luggage and declare them at the border they may be confiscated, and if you don’t and they are found later you may be in serious trouble perhaps facing imprisonment.

And imprisonment without the drugs might be life threatening, and confiscation of the drugs at the border will mean you have to go straight back home if your health depends upon your pills.

In fact the ONLY way to be allowed to enter Russia with any of the medications which feature on the list on the Russian consulate website, is what it says on that website. Which is – “If you are travelling to Russia with one of those medicines from the list you must have a prescription or a doctor’s letter with a NOTARISED translation from English into Russian. The document should give the name of the patient, prescribed medicine and its quantity.

Please also note, for Russia, documents notarised in England must also be stamped with the Foreign Office Apostille.

Which means that this cannot be done in five minutes, or even a week. You have to

  1. put me in touch with your doctor, so I can check the prescription is genuine,
  2. obtain a translation of your prescription and/or a letter from the doctor, into Russian
  3. get my notarisation in English and Russian that the prescription is genuine and the translation is genuine
  4. get the FCO Apostille.

So it is always somewhat shocking to us how many times we are contacted very late in the day, as a kind of afterthought, – we have twice recently been contacted by people in this situation who have left it very late and once by people who have had to cancel their holiday plans entirely all because they started the exercise too late.

We at AtkinsonNotary can assist you in avoiding the above scenarios.  We offer a complete comprehensive package to verify, notarise, translate and legalise your prescriptions – all it would entail is a short meeting at our office for you to bring your medicine prescriptions which you require to be dealt with and simply leave the rest to us, giving you extra time to get ready for your trip and peace of mind that your medicines will not be taken from you.  We are fully aware of the requirements of Russia and we can proceed swiftly.

If you take a look at the Russian Embassy website Link here – they set out in detail their requirements for entry into the country with specific medications.

Don’t leave it to chance and risk your trip being denied or your medications being confiscated giving you no option but to return home because you need to take life-saving medication –come and see us, let us prepare the necessary paperwork leaving you to enjoy a stress free trip.

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

 

 

Did I Get Married In Ghana? I’ve Never Been There

Did I Get Married In Ghana? I’ve Never Been There

I wonder whether this blog could start with a request for assistance please? If you go to my website you will see that it has been updated. The hope is that navigation will be a little easier. As with all computer changes, the easy bit seems to be the writing and installing of the new program followed then by the harder bit of identifying any errors or bugs.

For example a website that renders well on a PC might not look the same on a tablet or a phone, sometimes links may not be operative on all computer systems. So could I ask you, if you do spot a bug or any problem with the new site, be a pal and let me or Louise know?

Ok. The Blog. As often it’s about the clash between the English way of doing things, and a foreign country’s procedures and laws.

And how it can fall to Notaries to “square the circle”.

The question – a Notary colleague has been asked to witness and authenticate a Deed which a lady wants to sign in England in order to get married in Mexico. Not unusual on the face of it, I do loads of these for folk wanting to get married in all countries, Italy Australia and the Caribbean being favourites.

Yes, but, this particular Deed is also a Power of Attorney. She wants to appoint someone in Mexico to go to the wedding on her behalf – she can’t go. And more remarkable still, her fiancé is a German who is signing something similar in Germany and he won’t be going to Mexico either.

The documents wouldn’t work in England. You have to go to your own wedding in England. I have spent a while trying and failing to find legal authority for that previous sentence. Perhaps the authority is the lack of any legal framework that says you don’t. Or perhaps the authority is, YOU JUST DO!

So, if we accept that in England you have to attend in person to get married, but that in Mexico you don’t, can I as a Notary assist you in England to set up your Mexican marriage that you won’t be going to?

My view is, that England will recognise a marriage if it is recognised in the Country where it takes place, so yes, crack on.

But is that the end of it? I am saying I can assist in England to facilitate a procedure which is not possible in England.

What if I were being asked to facilitate something actually illegal in England but legal abroad? Polygamy for example. Not bigamy mind that’s something else. [There are several countries and religions which will recognise that a (usually) man can have several (usually) wives. And England will recognise as valid a polygamous marriage if it is valid where it was made]

No, I’ve got nothing. OK I’ll answer that one when it happens.

When you rootle through the internet for legal case law on any arcane topic, you find surprises. The link coming up is to the 1993 case of McCabe v McCabe.

The English Court allowed a divorce case to be heard, declaring that a marriage had taken place in Ghana and was valid.

The husband had pleaded that it wasn’t. He said – I am paraphrasing wildly– “I didn’t go to Ghana – I didn’t go to any wedding, neither did she.”

“I was living with her in London when we found out she was pregnant. My old uncle went to see her family in Ghana to give the news. Uncle gave the family £100.00 and a bottle of rum and they had a party and then uncle came back to London and told us we were married.”

The husband told the Court – “that can’t be right can it?”

Well, here is the news for Mr McCabe, he had committed matrimony and didn’t even know it.

Here is – the download Link –  It is safe, it will open in read-only mode

Here’s a happy song about a nervous breakdown. “This is not my beautiful wife” – Mmmm  You sure about that?

As ever, 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 visit our website http://www.atkinsonnotary.com

 

 

 

 

You Don’t Know what You’ve Got Till It’s Gone.

You Don’t Know what You’ve Got Till It’s Gone.

Here is a recent decision of the Courts which gives a clear reminder that not everything has a price.

It is a decision on appeal from a Tribunal decision which was in my view plainly wrong although understandable.

A builder, Millgate Developments Limited, has obtained planning permission to develop land which it owns by building thirteen brand new “affordable homes”.

This kind of building is apparently something that the country is “crying out for” in the language of politicians. Many readers might well also agree that social housing of this kind is in short supply and is indeed, broadly speaking, to be encouraged.

After it was finished, ownership of the development was transferred to a Social Housing charity and tenants have moved in to live there.

It might seem a little surprising therefore that the Court has ordered that all of the tenants must leave so that the entire development can be demolished and the land returned to its previous state as open land.

The Builders will lose all of their work and money spent in building the estate, all of the court fees, and will either have to build a replacement estate somewhere else or else pay an additional approximately £1.6 million pounds to the council for failing to do so.

What? Why? Eh?

It goes back to an agreement made in 1972, before Millgate were the owners of the land.

The history is that in 1972 the land was part of a farm and had been sold by the farmer who retained most of the rest of his farm. The terms of that sale were that the land sold should stay open and not have any building upon it and not used for anything except the parking of vehicles. No doubt the price paid for the land was less than it would have been if there had been no such restriction.

The purpose of the restriction was to enforce the farmer’s preference that the rural beauty of the area should not be spoilt by buildings, so that the farmer would have a lovely view to contemplate whilst doing his farming. He could have got more money if he had not insisted on this, but money was not his top priority.

It seems that when Millgate Developments Limited got its hand upon the title to the land, it knew jolly well that the land they wanted to build upon, was “encumbered” by this restriction, called by lawyers a “restrictive covenant”.

Whilst the rules regarding the passing of the benefit and burden of these restrictive covenants are complicated, all we need to know is that the existence of this restriction was well known to Millgate Developments Limited, who clearly decided to take a gamble.

They decided to build anyway and face the music, if there would be any music, later on. No doubt thinking – we are in business to make money. We won’t make money unless we build, building is what we do.

By the time that this decision was taken, the farmer had also transferred nearby land (in lawyer-speak, the “dominant land”) by a gift to a neighbour.

So Millgate Developments Limited seem to have taken the view that everything can be solved by money, let’s crack on lads, build our development and get it full of tenants, then offer the neighbour some brass to go away and stop complaining.

And let’s really crack on and get the building finished and everything done and dusted and loads of new tenant making homes in it, before the Courts can interfere.

After all they probably thought, is a Court really going to throw out a load of tenants from their desperately needed new homes and make us knock it all down, just so that the neighbour can continue to enjoy the view?

More likely, they will slap our wrists, make us chuck a few grand at the neighbour and everyone is happy.

How do you feel about this?

On the one hand, it is an awful waste of money and a terrible disappointment to people living in their newly built affordable home, to pull it all down.

On a different one hand, it’s just bullying isn’t it? The Builder probably thinks, if we make it really expensive for the neighbour to complain to the courts and risk wasting lots of money if he loses, he’ll give up and take some money from us and go and look for a lovely view somewhere else.

And it may be that the Builder, being motivated by money making, assumes that everyone else is too. I don’t know.

There is a type identified by Bob Dylan :-
“Businessmen, they drink my wine
“Ploughmen dig my earth
“None of them along the line know what any of it is worth”

And by Oscar Wilde, who describes a cynic as “a person who knows the price of everything and the value of nothing.”

Happily, I don’t think that the Judges of the Court of Appeal base their decisions upon whether there has been bullying or whether the personalities of the litigants are identifiable in poetry and song. That is for commentators and people who write Blogs.

Nor will the Judges, happily again, be intimidated by the cost of the consequences in waste and expense, of making the correct decision and simply applying the law. The Law that is, being English Land Law and the rules of restrictive covenants.

To my mind, if the law cannot be applied and enforced, the Judges might as well retire and leave the country to the builders.

I think that Millgate Developments Limited should learn a lesson from all of this. Don’t be a bully. So hooray for the Courts and the Law of England – here is the judgment – Link Here-.

It may be there are some readers who think that a private contract of this sort between a Buyer and a seller should not be allowed to live on after both of them have sold their personal interests and that “of course” a rich land owner should not get his view back when an expensive development benefiting poorer members of society has made things less rural and private.

Land Owner –so = “Rich” = “Bad” yes?

Boo Hoo, they might be thinking.

I hope not though, can’t be doing with either sentiment or kneejerk reactions, the law’s the law, eh?

In this particular case then, perhaps a bit of a quandary for that kind of thinking, when it turns out that the owner of the dominant land is a Hospice for terminally ill children, which is providing a secluded home, with outside areas of woodland and rural views in which those children could spend their last days on Earth in a place of peace and quiet and beauty.

Or they could have done, until Millgate Developments Limited started building.

Here’s a song – link here if you’ve got ten minutes

As ever, 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 visit our website http://www.atkinsonnotary.com

Probate Money Grab – It’s Back On

Probate Money Grab – It’s Back On

I mentioned in –Link Here – this Blog the amazing Government proposal that the Court fee for issuing Probate should increase from today’s maximum – of £215 (£430 for a couple dying, one shortly after the other), – to £6000.00 (or £12,000.00 for a couple dying, one shortly after the other,)

 The figures above are actually less than was originally proposed. Not that that matters at all to the principle of the thing.

The work done by the Court in issuing a Grant of Probate typically is to check that a Solicitor or applicant in person has got the sums right, then to apply a stamp and presumably make an entry on a computer.

Time involved – what? – 30 minutes with a cup of coffee, less than that if it’s getting near to going home.

And this is the case WHATEVER THE VALUE OF THE ESTATE.

£430.00 is a bit high, that fee, isn’t it? The Government’s own figures confirm that the fee is well adequate to cover the cost of supplying the service. So, £12,000.00 per couple is clearly not a fee is it, it’s a tax.

In essence no difference to going into a shop for cigarettes and getting them free if you are on benefits and having to pay a made-up figure of hundreds of pounds (or however much the government feels like) if you have got a nice house.

Now is the time to write to your MP, if you think this is wrong. The reasons why you may think it is wrong might be
• because you believe that the estate of a person who has died has already suffered tax, because the income that was earned during life was subject to income tax, and that the same estate will be subject to Inheritance Tax, and that a third tax for Probate fees is one tax too many
• because you believe that a conservative government should support the idea of hard work generating capital which can pass from parent to child rather than be swiped in two separate ways on the parent’s death
• because if you voted conservative, you did not vote for this
• Because if you do wish to vote for politicians who are conservatives, but the ones in government behave like this, then there doesn’t seem to be any party you can actually vote for.

A much more articulate person than I is John Eaton, a Consultant Solicitor in Leeds, who has sent me a copy of his letter to his MP and with his consent the rest of this Blog is that letter. If you think he is wrong let me know. If you think he is right, maybe tell your MP. NOW, would be a good time!

Dear Philip

I apologise for bending your ear yet again with another tirade against this iniquitous, unfair and totally unjustifiable stealth tax, which the Government insist on describing (wrongly) as an “increase in fees” – but following the very disappointing outcome of the Parliamentary Committee meeting on Thursday this week (when the proposal was inexplicably passed by 9 votes to 8) it seems that the only way of preventing this regrettable and sordid little proposal from becoming law, will be for MPs to vote it down when the proposal comes before the Commons in the near future.

For this reason, and knowing that you also regard the levy of this tax as wrong and unjustified, I am hoping that you lay also be able to influence some of your fellow MPs to vote against the proposal when it is presented.

I am sure that you will be familiar with all the arguments against the proposal, and the total absence of any argument in favour of it, but just to re-cap briefly on three of the main arguments for voting against the proposal, as usefully summarised in the following explanation by the Law Society:

The Law Society’s key positions on the Non-Contentious Probate (Fees) Order 2018

• We believe the dramatic increase in fees amounts to a stealth tax. We agree with the conclusions of the Secondary Legislation Scrutiny Committee, the Joint Committee on Statutory Instruments, and the House of Lords that the scale of the fee increase is a misuse of the Lord Chancellor’s fee-levying power. (By way of additional comment from me: – to completely ignore the conclusions of those authoritative bodies is both unreasonable and arrogant in the extreme)

• The fee increase is disproportionate. The service involved in a grant of probate is the same whether an estate is worth £50,000 or £2 million. However, under the new proposals, some estates would face a charge of £6,000. This is excessive, particularly when compared to the current fee of £215 (or £155 if done by a solicitor).

• It is unfair to expect the bereaved to fund or subsidise other parts of the court and tribunal service, particularly in circumstances where they have no other options but to use the probate service.

For these reasons, the Law Society urges members of the Fourteenth Delegated Legislation Committee and other members of the House to object to the Order, and to vote against the motion to approve

Just to add to the above, I stress that the work for which the alleged ”fee” is charged, comprises about half an hour of pure administrative work – nearly all done by computer anyway, and which does not bear any relation to the size of the estate, nor does the proposed “fee” have any bearing on the cost of providing the service. For these reason, the proposed tax has been universally condemned by all the relevant professional bodies – Solicitors, Accountants, Trust & Probate Practitioners – and yet the Government STILL ignores these objections and STILL refuses to acknowledge that the levying of a fee of up to £6,000 for a service which currently costs £155, is unreasonable and is a tax, not a fee.

In passing, I must say on that point, that I find it surprising that Lucy Frazer QC doesn’t know the difference between a fee and a tax. Although (as you know) I wrote to her explaining that a “fee” is a charge for a service provided and will reflect the time, effort and skill in providing that service, and a “tax” is a levy on a document or transaction will usually vary with the value of the transaction, it was clear from her reply (via you, for which thanks!) that she simply doesn’t understand that difference, and still sees nothing wrong with raising a tax on service “A” (issuing a Grant of Representation) in order to subsidise service “B” (the Justice System generally).

On this basis, why doesn’t the Government charge a fee on Undertakers’ invoices, of, say, 25% of the amount of the invoice, in order to subsidise Legal Aid? There would be just as much logic in that, as in this outrageous “Death Tax.”

Needless to say, I am also dismayed – nay, even disgusted – that a Conservative Party, which claims to believe in freedom and justice should seek to impose such an unjust and unjustified tax on the relatives of dead people (in addition to all the lifetime taxes and Inheritance Tax which the Deceased will have paid in their lifetimes). If there were an alternative Party which claimed to believe in freedom, fairness and individual responsibility, but unlike this one, actually practised what it preached, I am sorry to say that I wouldn’t hesitate to vote for such a party in place of a Conservative Party which appears to have jettisoned entirely the principles of fairness on which it was launched, and prefers to sacrifice morality on the altar of financial gain.

I do hope that you will not only vote against this outrageous and sordid little proposal, but may be able to persuade all your Parliamentary Colleagues also to do so.

With best wishes

John

In summary – They just want your money really and they will lie and distort to get it. Personally, I’d rather John Lee Hooker got it. Link here

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