Louise Explains – Our Role In Your New German Office.

Louise explains – Our role in your new German Office.

As international Notaries working in a large English City, we are very often instructed to assist our corporate clients to assist with the creation or management of their linked German Company – GMBH (Gesellschaft mit beschränkter Haftung).

There are several reasons why a UK company might open a German Office, as a subsidiary or a separate entity.

• A German Company has unrestricted access to the German legal environment -And Germany is the largest European economy.
• A German GmbH is compliant with all German regulatory requirements, and is understood as an entity by its German contacts, its advisors, bankers suppliers and customers.
• If it has German suppliers and customers then of course the logistics are simplified by being physically closer to clients, suppliers, and partners in the region.
• This Closeness operates at a cultural and indeed emotional level. The German customers are not dealing with “foreigners”.
• The GmbH created is of course itself a limited liability company, therefore separate from its UK owner.
• The Gmbh is subject to German tax laws and may be eligible for German tax benefits or grants.
• Brexit trading problems between UK and German should be mitigated or eliminated.

Obviously, the creation of a GmbH is a major venture and you will need expert legal advice from your UK lawyers and also will need to appoint German qualified lawyers who have experience of advising UK companies in Germany in respect of German Company formation.

Once the strategic business decisions are made, the practicalities will include preparation of documentation just as in UK. You will need to agree the text of the articles of association, details of shareholders and directors, and the registered office address.

Then this is where we come in! The German authorities will require you as shareholders of the proposed new GmbH to execute many of the new company documents either in Germany, or if you cannot conveniently travel to do this, then before us in Leeds. 

By our certification we authenticate for the benefit of the German authority, your personal identities and your UK Company identity and certify that you fully understand the process you are entering into.

The documentation will require Legalisation (see my other Blogs on the subject of Apostilles) .

Once all this work is done in Leeds, your German lawyers will be able to create the new Gmbh and register it at the German Company Registry (Handelsregister) for the area of your new principal office. 

• Mögen Glück und Wohlstand Sie begleiten!

Please do contact us whenever you need Notarial certification or Legalisation for your Documents– at http://www.atkinsonnotary.com – or phone   on 0113 816 0116 (internationally 0044 113 8160116)

For emails, here we are at  louise@atkinsonnotary.com and notary@atkinsonnotary.com.

Please also feel visit our website www.atkinsonnotary.com

New Laws Coming For Companies. More Red Tape? Being More Chinese?

New Laws Coming For Companies. More Red Tape? Being More Chinese?

Image © Keerati

Governments and Opposition both often campaign on a promise to “Get Business Going“ and to “Cut Through the Red Tape”.

Yes, right, so here comes some new additional red tape and we are not surprised a bit.

Is the “Economic Crime and Corporate Transparency Bill” on your radar?

It is the next step in the rule changes at Companies House proposed for all Companies including the very smallest ones (“micro-entities) and it Received Royal Assent at the end of October 2023. It will be implemented, as new Law often is, bit by bit, so that Companies and their advisors can have some time to get used to how it is going to work and what is required. No doubt Companies House also will need this time to get up to speed.

Here is a link to the text of it. Click here

New Law? What again? It’s not as if there isn’t a lot of it already, and it looks as if we’ll all be paying more money to our accountants.

Trouble is, criminals are ever active and the UK Company Registration System is less than impregnable to fraudsters.

As Companies House states in its own Press Release, “At present, Companies House is primarily tasked with storing information in respect of UK corporates, and to making that information available to the public. Its ability to query information which is submitted to it is very limited, meaning that it cannot effectively police the submission of incorrect data or flag suspicious activity among corporate entities.”

I have often had to explain to foreign jurisdictions, who find it hard to accept, that up to now Companies House is entirely “re-active” not “pro-active”. Which means that, if you don’t tell Companies House that you have appointed a new Director in your Company, then it doesn’t know. But according to the present Law, the new Director is in place and can start running the Company, even though they are not on the record.

If a liquidator doesn’t tell Companies House that the company has gone bust, then again, Companies House simply doesn’t know.

This is in stark contrast to the ways of other countries. In Russia or China for example, No-one will be a Company Director unless the State says they are. (Are those Countries now our role models? Hmmm.)

The intent of the new Law is to change all that.

In future a newly appointed Director will not be able to act as a Director until listed as such at Companies House. (So – more like in China then!).

One other aspect of the present system is the lax approach to names. In many countries, your name is your name. Your whole name and nothing but your name. Just like with your passport number. You don’t leave out the middle three numbers and say – oh I don’t use the middle ones.

But names? Not in UK, or in USA for that matter. And Companies House has been accepting that. So, a Company with one Director who is also the Company secretary, might have Joe A Bloggs named as the secretary, and Joseph Albert Bloggs as the Director. They are the same person. But sometimes when I raise this with Mr Bloggs it seems that he simply doesn’t recognise the fact that they can’t both be his name.

Which is your name?
They both are.
But they are not the same words.
No, but they are both my name.
Doh.

We sort of get how this works in day-to-day life. James is Jim, William is Bill. OK. Yet it requires quite a sophisticated computer system to see that perhaps the two names relate to the same person.

So, in future the idea is that names (you know, what it says on your Birth Certificate) – will be used.

This merges with another requirement of the new law about the proper identity verification of all officers and persons with significant control. Which is that for reasons which with hindsight seem obvious, Directors will no longer be able to self-certify their identities. It seems you may have to submit your original passport or driving licence at least unless you use a professional identity verification service.

And here may I point out that Notaries Public will be accepted at Companies House as authorised corporate service providers suitable to deal with identity verifications. Just saying.

Shareholder details will be required to be notified in a much more transparent manner.

Companies will be required to have an email address.

And of particular relevance to smaller companies, there will be new rules as to filing of financial accounts.

This will mean that huge numbers of companies which at present do not have to file their profit and loss accounts, will now have to do just that.

The plan is to combat fraud. How exactly, I naively ask, does this achieve that? Answers on a postcard please.

And if this is a remedy, is it proportionate to the problem?

For example, If the patient has measles, then measles will no longer be a problem if the Doctor shoots the patient with a gun. But generally speaking, it’s not considered to be the best way to cure measles.

If we can accept that the majority of small companies are not fraudulent, still they will be required to publish their P&L accounts just like the crooks.

According to a blog by “accountingweb.co.uk” a staunch opponent of the reform, Izzi Rosenberg from Harris Rosenberg argued that the reforms are not going to meet its objectives to prevent fraud. “It’s completely useless. Anyone who needs to see a profit and loss, lenders and HMRC will get exposure to that and putting it in the public view will not combat fraud.”

He also raised concern that “it’s going to expose small businesses to a nosy neighbour culture” and will put them at a weak competitive advantage against larger customers.

“You have a lot of small businesses who are solely supplying to a supermarket chain as their main customer. But if that Supermarket now has access to P&L information on these smaller companies, they can see how much they contribute towards their turnover and they can see information about their profit margins, and if they think this supplier has been too profitable, then they’re going to start squeezing them,” he said.

I suppose that if there is no freedom and there is no privacy, then there is no fraud. But remember the patient? The patient is dead.

Anyhow, we are where we are.

Most of the measures outlined above will be brought in gradually.

There can be no doubt that these are real changes, therefore they need to be prepared for now, rather than addressed under pressure later.

A relevant song?. Click Here  Everything is Broken.

Please do contact us whenever you need Notarial certification or Legalisation for your Documents– at http://www.atkinsonnotary.com – or phone us on 0113 816 0116 (internationally 0044 113 8160116)

VERIFICATION OF EDUCATIONAL CERTIFICATES – Louise explains how we can help

VERIFICATION OF EDUCATIONAL CERTIFICATES

Bogus, Faked University Degrees/Diplomas are big business (see link) – so how are your prospective employers going to be shown that your own Degree is Genuine?

If you are wishing to work overseas or prove your British academic qualifications abroad then we can help.

One of the services we offer is to verify, notarise and legalise original or copy Educational Certificates as genuine. A Notary’s certification is recognised in any country of the world and is the appropriate body to deal with such instructions.

In a nutshell the foreign jurisdiction want to know that your certificate(s) are genuine.
Notarisation of educational certificates is a process we complete on a daily basis.
Please see below some FAQ which we hope will assist with any queries you have:

I do not live local to your office/I live abroad can you still assist?

There is no requirement for a face-to-face appointment. We can deal with your requirements remotely using email, telephone calls or video calls if required.

How much does it cost?

Fees vary, depending on what is required – some countries require verified and notarised certificates only, whilst other countries require additional stamps called “legalisation” – These can be Foreign Commonwealth and Development Office Apostille and/or Embassy or Consular stamps.
We ask you to email directly to us scan(s) of the certificate(s) you require verifying and notarising tell us which country you are going to and we can reply to you with a fixed quote and confirmation as to whether legalisation is required for that country.

What does verification entail?

Verification is what is required for us to proceed to notarise your original or copy certificate(s) as genuine. We contact the issuing educational institution who has issued your certificate to authenticate – the end user who has requested your certificate(s) notarised requires to be certain that you hold such a qualification and that we ultimately notarise the certificate to confirm this – notarisation can be placed on your original certificate(s) or photocopies – you would need to check with the end user which they require. If you can, we would suggest you get a copy notarised so that your original Degree certificate remains unmarked.

How long will it take to complete notarisation and/or legalisation of my certificate(s)?

This depends on numerous factors, mainly how quickly it will take for the educational institution to respond with verifications – each University, school etc have their own timescales – typically most educational institutions respond within a week, but some can take up to 20 days or more. In relation to legalisation again this depends on the service you require – Foreign Office Apostilles on the standard service typically takes around a week at present however if the matter is more urgent then we can provide an express service (24 to 48 hour turnaround) – if Embassy stamp(s) are required then get in touch and we can confirm the current timescale for that particular embassy.

Can you arrange a courier to send my completed documents to me abroad?

Yes, we can, we are FedEx agents and can arrange FedEx courier to send your certificates to you – if you would like a quote for this service, we require a full address to confirm the rate for courier delivery.

How do I make payment and when is payment requested?

We accept payment by all major credit/debit cards if you are present in our office. Alternatively, we can accept payment by bank transfer, cash or cheque.
Our standard terms means that payment in full is required before we submit our formal verification requests – if this causes any issues please get in touch and we can discuss further.

Do we need to see your original certificates if notarised copies are only needed?

No, there is no requirement for you to post/courier your original certificates to me if you require notarised copies only – as we are verifying your certificate(s) with the issuing educational institution we therefore do not need to see your original. Of course, if you require your original certificate(s) notarising then we would need this to be posted/couriered to our offices in Leeds.

Please do contact us whenever you need Notarial certification or Legalisation for your Documents– at http://www.atkinsonnotary.com – or phone us on 0113 816 0116 (internationally 0044 113 8160116)

AtkinsonNotary Blogs are back HOORAY

AtkinsonNotary Blogs are back. (and the final Chapter in the Wm Morrison saga)

The absence of our regular blogs was a merely trivial consequence of the present CV19 plague, but we missed them and now hope to resume them.

Louise and I have now re-opened our office.

Please note that our office premises are closed to visitors but we have a cunning plan!

I have a camper van – 6 metres long – which is parked in the office carpark where we can meet you. I sit at one end, masked – you sit at a table at the other end. And a splash of hand sanitizer before and after we meet.

Also, The Foreign and Commonwealth Office has partially re-opened after being closed for three weeks. Apostilles are likely to take over a week to obtain.

Many consular offices have closed and others are working on reduced service; we can advise you as required.

Anyway – the Blog.

Earlier Blogs related to recent litigation on the topic of “Vicarious Liability”. This is the concept that if you are hurt by the fault of an employee who is at work in the course of his business duties, but that employee cannot afford to provide adequate compensation, then you can address your claim to the employer.

The sort of thing – You are run over by a brewery lorry delivering barrels to local pubs and it turns out the driver knew the brakes weren’t working properly but hadn’t bothered to tell the Brewery.

The Brewery might well truthfully say – if he had bothered to tell us, we would have fixed the brakes so this really isn’t our fault.

Even so, the law from as long ago as the 18th Century has said in the words of Chief Justice Holt “For seeing somebody must be a loser, it is more reason, that he that employs and puts a trust and confidence…should be a loser rather than a stranger’.

My earlier blogs about vicarious liability both involved by complete co-incidence the unfortunate employer Wm Morrison Supermarkets plc.

The first one is about the petrol pump attendant who went fully “postal”. The link is here
Morrisons were held vicariously liable to compensate.

The second is the case of their data protection officer who went rogue and put private, personal details of over one hundred thousand employees on the internet. Again, Morrisons lost the case and are held liable to compensate. The link is here

That case then was appealed by Morrisons who lost the appeal because the appeal Court followed the reasoning of the Judge of the first Court.

In both cases the legal discussions and arguments reminded us that the Law was and remains that:- There cannot be vicarious liability unless both of two factors are present,

First the person causing the damage must be, broadly speaking, “at work” that is, doing stuff the employer is paying for.

So if you are run over by the brewery lorry on a Saturday night when the driver is not at work but has taken it for a drive without permission, that test may not be met

And second, that there is “sufficient connection between the employment position and the wrongful conduct”

So in the first Morrison case, the petrol station attendant who punched and assaulted the customer had gone mad and certainly any employer would dismiss him but he was nevertheless (albeit consumed with unreasonable rage) shouting at the poor victim that he was barred from Morrisons and must never come back there. He was clearly, in his deluded mind, “at work” and “exercising his authority as an employee”.

So, in that case, the tests were met and Morrisons have to pay for the consequences even though their only fault was to trust their employee to behave properly and there had been no previous suggestion that he would not.

And in the second case also, the facts could be seen to be similar. – An employee who was trusted to do his job properly, suddenly turned rogue.

So in all three of the times that that case was heard before Courts, the argument of Morrisons was the same. Which is that the IT Data controller was not “at work” in the way that the mad petrol pump man was “at work”.

Morrisons argued, this was quite different:- that in this case, Mr Skelton was a trusted employee in the IT and data handling department of Morrisons, trusted to liaise with the Company accountants and supply sensitive data when necessary.

Although the Company knew that Mr Skelton had recently been disciplined for sending his own personal postage through the firm’s post room [even though he had paid for the stamps he used!] and it also knew that he felt that the treatment he had received was unnecessary and unfair, it had no reason to suppose that ideas of revenge would fester in his mind until they lead him to release the entire employee personal database contents onto the internet.

And Mr Skelton did not do that “on behalf of” Morrisons. He was not a petrol -pump man in uniform shouting and screaming “stay away from my employer’s business premises”.

Quite the contrary, he was a bitter man plotting in his bedroom how best to attack Morrisons and “make them pay” for his perceived injustice.

Eventually, Morrisons has found a judge who agrees.

Here is a link to the case transcript

So – you know – Glory Be and thank you for that.

We are perhaps left wondering why it has taken three court appearances over two years and left Morrisons millions of pounds out of pocket before an answer has finally been arrived at – the answer being what you might think any level headed observer would have expected from the beginning.

Mick and Keef were not in the Courtroom, but in their place the barristers told the Court once and told it twice and it never listened to their advice. Until the last time – link here

It is good to be able to finish by saying: – We are back at work, so please do contact me or Louise whenever you need Notarial certification or Legalisation for your Documents– at http://www.atkinsonnotary.com – or phone me on 0113 816 0116 (internationally 0044 113 8160116)

FAKE QUALIFICATIONS ARE NOW A BILLION POUND INDUSTRY

FAKE QUALIFICATIONS ARE NOW A BILLION POUND INDUSTRY

If the well-groomed intelligent looking person sitting opposite you for a job interview answers the questions well, why not just say – “When can you start”?

After all interviews are a chore and most of us really don’t know how to do them. What we really want is someone who will fit into our organisation, someone personable and if they support Leeds United so much the better.

Obviously if the post requires specialist qualifications, the candidate will be asked to produce their degree certificates and references. But you probably suppose that a person who is not actually an engineer is hardly going to be asking for a job as engineer, so yes, just accept the paperwork at face value and put it in the drawer.

You think?

Link – here — this lady faked her qualifications to work as a Psychiatrist for 22 years, yes you have read that right, 22 years. She was placed into a position of trust pretending to be a Psychiatrist whilst treating Alzheimer patients.

Scary much?

“The convicted fraudster had failed the first year of medical school in New Zealand in 1992, but subsequently managed to register as a doctor with the General Medical Council (GMC) with a forged degree certificate, forged primary medical qualification and a fake letter of recommendation from her most recent job in Pakistan, under a visa scheme that has since been discontinued”

Being a crook, she also took financial advantage.

She “befriended” one of her patents who was recently widowed and fraudulently drafted a Will for that patient and also applied for Power of Attorney over her patient’s estate.

I am pleased to say she did go to Jail for all the fraud she had committed.

But – How did this women get to be in such a position of trust for 22 years, prescribing extremely strong medication (anti-psychotic drugs) and even sectioning patients!

The trouble is, honest people find it hard to believe in criminals. In the abstract, yes. But not in your office, in a job interview, with coffees and bickies – Surely not.

BUT AGAIN – It has been reported that around 75 bogus Universities websites and criminal operations were shut down in the past 4 years in England alone –more than 200 potential cases of fraud based upon the use of bogus degrees and similar fake qualifications have been reported since 2015

As a Notary Public office we are able to offer the service of verification checks of any proposed candidate’s qualification issued in UK, information contained in a curriculum vitae & verifying Criminal records check.

A  Notary Public is a trusted Legal officer whose certification is recognised in any country of the world and who is able to warrant facts and authenticate documents.

There are websites that you can purchase these bogus certificates directly from who are offering “get a realistic FAKE PhD Degree, buy it now @ $250.00”. Here is a –LINK – to one.

Dishonest people who purchase Bogus Educational qualifications are doing so in the hope of landing that “high-flying” job– there have been many reports recently of Doctors who are not qualified who have purchased a fake Degree Certificate to secure the job of their dreams even though they have no medical qualifications whatsoever – yes this really does happen!

See here – a link – to just one of such cases.

And there are more and more reports on the web of people in positions of trust who have used fake and bogus certificates to get the job they want – even aeroplane pilots! – the mind boggles!

Some of the headlines relating to fake Degrees:-

“Pilots and airline staff suspended for fake degrees”
“A PILOT who was caught inventing qualifications to lie his way into a commercial airline job is now flying holidaymakers out of Scotland”
“Thousands could be using fake degrees to apply for jobs”

If you are an employer or recruiter anywhere in the world my message to you is, don’t get caught out by unscrupulous individuals who feel it is okay to lie and cheat their way into employment that they are not qualified or entitled to do.

I am pleased to say that we offer a verification service so you can 100% be reliant on the paperwork your candidate produces. We can verify and authenticate any English Academic papers, we can verify details given on a C.V i.e check references, work experience etc.

Our verifications will be accepted around the world, we can obtain all necessary additional Apostille and Consular stamps.

We also have processes in place to verify and notarise as genuine ACRO and DBS Police Check!

Don’t give these fraudsters a way in. Let’s put a stop to this deceit and verify qualifications and references EVERY TIME – the more recruiters and HR Departments and other employment professionals opt to do this then the less likely it is that a fraudster can find a way in!

So don’t let anyone involve you in their intricate frauds. As the great man almost said “Shame on their greed, shame on their wicked schemes – I’ll say this, I don’t give a damn about their dreams” – Here’s the song –LINK HERE-

If you would like to speak in more depth as to what we can do and what we can provide then please do not hesitate to contact me, Louise Morley, Business Manager 0113 816 0116 or email louise@atkinsonnotary.com to discuss further.

Judges – On The Whole, Rudeness Is The Remarkable Exception These Days.

Judges – On The Whole, Rudeness Is The Remarkable Exception These Days.

In many of my Blogs I have provided links to the transcriptions of various Judgments of the Court.

For example:- The judgment of The Honourable Mr Justice Fraser, in my most recent Blog, about the terrors of working for the Post Office, was a document of the length of a novel and it was a model of clarity.

Again, in the case where the liability of Wm Morrison Supermarkets PLC to its employees in respect of a malicious act of a computer hacker was considered (currently awaiting a final appeal decision) the words of The Honourable Mr Justice Langstaff are thoughtful and clear and where the Judge felt that there was room for doubt he was fair to say so and to give leave – without being asked to – for an appeal. -Link here–

And it is true that in the vast majority of cases in the higher courts, this is the standard.

Lower down the legal system, sometimes this is not the case.

Even so, rude and hostile judges are still so rare that examples tend to make the news.

There was one such case in 2019 which made the local press -Link here- and professional press headlines -link here-

This was the case of a court being asked to decide about the care and housing of a young child – a baby girl of one year old. The case was heard over five days and it’s not surprising that most of the witnesses, experts and family members, and judge alike, had strong feelings and a deep emotional investment in arriving at the right decision.

The decision to be reached was in essence a choice between foster placement leading to an adoption plan for the baby, or placement with grandparents.

The main problem with the second choice was the existence of a brother of the baby, a youth of 14 whose medical and behavioural problems meant that his presence in the same household as a one year old child would be a “threat to her safety and wellbeing”.

And whilst the boy was in residential care when the hearing was taking place, he was the subject of a settled “care plan” which included returning to live with those grandparents shortly.

The eventual decision of the Judge, District Judge Mian, was that the baby could not safely live with the grandparents and this fourteen year old, and so a placement was ordered for the baby girl as a preliminary to adoption.

On appeal, the Appeal Court agreed that, on the evidence, the decision of the lower Court – of DJ Mian – was actually cogent and well-reasoned. ”It would be difficult to criticise the Judge’s approach to the discretionary elements of the case.”

So what’s the problem?

As a reading of the press reports, and of the Appeal Court Judgment shows, the problem was not that Justice was not done. The problem was that justice was not seen to be done.

Have you ever experienced a situation where a meeting gets out of hand? Where you are simply trying to put across your point of view in a reasonable way. And everyone else is being obstructive and refusing to let you speak, or refusing to give any weight to your views. And the emotion ratchets upwards and everyone gets crosser and crosser and you can’t understand why no-one else in the room can see that you are the only person talking sense? According to you, of course.

(Brexit anyone?).

The hearing fell apart. Because the grandparents who represented their own views, and the social workers who spoke for the interests of the baby girl, clearly did not believe that the brother ever would come to live with the grandparents.

So they were discounting that possibility, and all of their submissions to the Judge were that the best place for the baby was with the grandparents because the perceived risk to the child if brother came to live there too was not an actual problem. Because he NEVER WOULD return. May I call that “Position A”.
.
But the Judge took the view that her hands were tied, because a Court had approved a care plan for the brother which was in force, which in her eyes meant that the case had to be decided on the basis that he CERTAINLY MUST return. My label, “Position B”.

And so the Judge was effectively trying to forbid any witnesses’ submissions on the basis of Position A. But the witnesses considered Position B preposterous and found themselves unable to accept it even as a hypothesis.

So round and round they all went, day after day, like teddy-bears in the nursery rhyme.

Which made the Judge crosser and crosser. Swearing and shouting. Storming Out of the Courtroom, unable to speak because she was shaking with rage. Turning her back on the Court. Scornfully mimicking the advocates and witnesses. Oh dear.

The fact that the Appeal Court could find no fault with her eventual written judgment didn’t make it all right. As they told her, you simply cannot run a Court hearing like that.

And of course, and wouldn’t you know it, by the time the Appeal Court heard the case, the 14 year old had confirmed his refusal to leave residential care to live with the grandparents and his own case had been reconsidered and he will now live until adult in a suitable residential placement away from his family.

Here is the Appeal Judgement transcript – Link Here –

So as the Appeal Court said, at paragraph 28, it is easy, “when you have hindsight and the irony of the situation is not lost” – Precisely what the Judge was being urged to consider and had refused time and time again to consider, “has come to pass.”

Very sad for all concerned. This is not an incompetent or usually rude Judge. But things went badly wrong.

If we are actually looking for rude Judges, the contemporary prize seems to go to the now retired His Honour Robert Stephen Dodds.

The Court Case Judgement which led the webzine Legal Cheek to dub him “Britain’s Rudest Judge is here -Link Here- . Once again, the Appeal court does not find his Judgment necessarily wrong in relation to the facts and justice of the case. But the manner of it certainly was.

But do you not feel cheered to read of a Judge who can tell the open Court “Can I tell you how bitterly resentful I am at how much of my Saturday I spent reading this codswallop”?

I hope that His Honour lives long to enjoy many codswallop-free Saturdays in his retirement.

At least there is no Judge practicing in the English Courts now who is in the terrifying league of the late Hanging Judge Jeffreys. His reputation has survived over some 350 years.

An extract from a learned paper – link here-

“There was a fiendish exultation in the way in which he pronounced sentence on offenders. Their weeping and imploring seemed to titillate him voluptuously; and he loved to scare them into fits by dilating with luxuriant amplification on all the details of what they were to suffer.”

Crikey.

Here’s the song – Peter Tosh reminds us that we may one day meet a Higher Judge. –Link Here –

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

Computer Says NO. Go To Gaol. Just Another Day At The Post Office.

Computer Says NO. Go To Jail. Just Another Day At The Post Office.

Am I out of step with most News reporting agencies in feeling that one of the most astonishing Court cases in recent years was largely unreported as it trundled along over the past decade? Or maybe I just missed it.

What have you seen in the media before this year about the saga of the Post Office and its IT system called “Horizon”? Ring any bells?

In around 2000 this system written by the IT Company Fujitsu began to be rolled into use in Post Office branches, that is, into the sort of Post Office which is based inside a privately owned shop, perhaps a newsagency or cafe.

Therefore, the system was used by subpostmasters who were really just shopkeepers. And as shopkeepers, they did not network with each other or have any Union or trade body looking after them. Each of them was separate, and on their own.

The new Horizon IT system began to cause them problems. On reporting to the Post Office, each was told that no-one else had experienced any problems, and they must be doing things wrongly.

So in 2005 on her first day of training in her new post office (which she had paid £250,000.00 to buy) Mrs Seema Misra watched as the Post Office trainers ran the system for her. At the end of the day, the system showed a £150.00 shortfall which was dismissed by the trainers as just one of those things. “It’s never penny accurate”.

Every day following, the system showed a shortfall of £200.00 or so. It is the contractual responsibility of subpostmasters to make good all shortfalls from their own money. Mrs Misra got no help from the Post Office. She got threats.

In January 2008, pregnant, she was sent to jail. Say that again? Sent to Jail. Pregnant.

Found guilty of theft of £74,000.00 and false accounting. Here is -a link- to a case commentary which concludes with the timetable to the Crown Court Hearing. If you click on the links in the timetable you can read the transcript of the court proceedings on each day.

So far as false accounting is concerned, she admitted that. Her reasoning as she explained was that, whilst the shortfall apparent in the accounts was the result of computer rogue errors and were not her fault, they would result in her being required to “repay” tens of thousands of pounds if she did not try to disguise them in some way.

She did however plead “not guilty” to the charge of theft, and that is what her trial was about.

I would also point out a difference between the evidence given to the jury in her trial, and the evidence which is usually given to a jury in an “embezzlement” trial.

That is, there seems to be no prosecution evidence or allegation of what Mrs Misra is supposed to have done with the £74,000.00 she is accused of having stolen – where she had put it, or spent it.

Usually when a person is charged with embezzlement, the money is traced. Often that in itself is the best evidence of the thefts.

Indeed it is usually by examination of the accused person’s bank account that the existence of large amounts of unexplained money gives rise to, or justifies, suspicions. You know the sort of thing – the headlines say “Trusted employee spent stolen millions on girls, drink and fast cars” (c.f. George Best – “the rest I just wasted”. Sorry).

This sort of thing – link- thief buys jewellery and gambles and sends the kids to private school and goes on holidays and buys a new car or –link- where the somewhat fabulously named US Attorney Mr Anthony Eugene Cheatham “used the money to pay his bills, write personal checks to himself and family members—and make payments to other individuals from whom he had previously taken money”.

As an aside, – Would you go to a lawyer called Mr Cheatham? He must be quite charming to leap that hurdle.

But – No such money was traced in this case. No allegations were made: – of living beyond her means, of nice holidays new cars or works of art. Do you think, – Because, there never was £74,000.00 gone missing? Durr.

All she knew was that she was on her own, she had no knowledge that this wasn’t happening only to her. But the Post Office did. There were lots of others.

Here is -a link-  to the Telegraph article highlighting her case and other cases.

I find it hard to imagine what it must feel like. To invest £200,000.00 of my own money (£67,000.00 on a mortgage) into a business where the computer says each day I owe £200 and each day and each day. Would I sleep? Then to be arrested, then sent to jail.

Not just her though :-

Mr Thomas. Age 72. Jailed.

Per Wikipedia, Ms Jo Hamilton was faced with having to repay the non-existent sum of £36,000.00 and because she couldn’t afford it and hadn’t had the money she tried to “falsify” the already false deficit. She pleaded guilty to fourteen charges of false accounting and re-mortgaged her house to repay money which never existed.

Rubina Nami jailed 12 months. Lost her house. Slept in a van upon release.

Private Eye states one person has committed suicide.

In 2011 this state of affairs was reported upon in Private Eye magazine. The journalist runs a Blog and is far more explanatory than I could be – he has been writing about the case for years here is – a link-.

In spite of the fact that the Post Office had been instrumental in the jailing of its subpostmasters for years, it seems that only in 2015 did the Chief Executive Paula Vennells – (who earned five or so millions of pounds whilst in post and who has not been sent to jail) – instruct her employees to enquire of Fujitsu whether the system was truly secure or whether external logins to its Horizon System were possible.

Its Court pleadings say ”neither Post Office nor Fujitsu has the ability to log on remotely to a horizon terminal so as to conduct transactions”

Not True.

It has become clear that the Post office has for years been desperate to defend the indefensible. Faced with real and obvious evidence to the contrary its position appears to have been – “Fujitsu say there’s nowt wrong with what we bought. So you must all be liars and jail’s the place for you – off you go.” I paraphrase.

Presumably because a billion pounds or so has been spent upon this system.

Possibly because it would feared that losing a court case would eventually result in the privatisation of the Post Office.

So for over one decade if not two decades it has been telling lies or allowing Fujitsu to do so without proper consideration of the facts and exhibiting, in the words of The Honourable Mr Justice Fraser “Institutional Obstinacy” amounting to repeated pig headed assertions that their system “cannot be to blame” and simply failing to accept all or any factual accounts by all witnesses to the contrary.

Because there is now a reported case. In fact the Post Office has agreed to pay compensation/settlement money of £58 million or so to – how many do you think? The number is 550 subpostmasters.

Five hundred and fifty poor sods. Five hundred and fifty lives disrupted for year after year.

The written judgment is a very good read. –Link Here- You can perhaps tell whether the Judge is furious. The levels of politeness and overt fairness have gone into overdrive. He is scrupulous as can be and his judgment runs to 1030 paragraphs over 313 pages.

After delivery of it he is reported to have said

“Based on the knowledge that I have gained both from conducting the trial and writing the Horizon Issues judgment, I have very grave concerns regarding the veracity of evidence given by Fujitsu employees to other courts in previous proceedings about the known existence of bugs, errors and defects in the Horizon system. These previous proceedings include the High Court in at least one civil case brought by the Post Office against a sub- postmaster and the Crown Court in a greater number of criminal cases, also brought by the Post Office against sub-postmasters and sub-postmistresses.

“After very careful consideration, I have therefore decided, in the interests of justice, to send the papers in the case to the Director of Public Prosecutions, Mr Max Hill QC, so he may consider whether the matter to which I have referred should be the subject of any prosecution.

“It will be entirely a matter for the DPP what, if anything, he does in respect of this referral…I wish to make it clear that the specific subject to which I will drawing the specific attention of the DPP relates to the evidence on previous occasions of Fujitsu employees.”

There was a time when the person in charge of a monumental balls-up requiring a negotiated settlement of £58m. would resign. Never mind personal responsibility or culpability even if there were none. As a matter of honour.

Wikipedia tells me Paula Anne Vennells, CBE, FRSA is “a British businesswoman and Anglican priest. She was Chief Executive officer of the Post Office Limited from 2012 to 2019 before assuming the chair of Imperial College Healthcare Trust, one of the largest NHS hospital groups”.

Yes, she’s running hospitals now.

By the way, and not before time, it would appear that the Horizon system is now working properly. So that’s all fine.

Here is a suitable song to cheer us all up – link –

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

 

Is An Email A Document? Can It Be A Signed Document?

CAN AN EMAIL BE A DOCUMENT WHICH IS IN WRITING AND SIGNED?

1 On the One Hand OF COURSE NOT, get a dictionary.

2 On the other hand, YES OF COURSE IT CAN why would you even ask?

What do words mean?

Always a problem for lawyers. As we know, “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

So in order to understand the meaning of words, do we have to use a dictionary? Or do we have to guess what the person using the word thought was its meaning?

Here is a link  -Click It -to a case in which Judges reminded themselves of just such a discussion in a case as long ago as 1803. The Freehold of a Pub in Limehouse London, served notice upon the innkeeper who was his tenant, stating that the lease of the premises was over and the Pub had to be vacated.

The Owner stated “I give you notice to quit the premises which you hold of me. . . commonly called . . . the Waterman’s Arms.”

OK but problem. – The presumably wealthy owner must have owned several public houses and got confused as to their names. What he had in mind was to end the tenancy of The Bricklayer’s Arms.

He send the notice to the tenant, at the Bricklayer’s Arms. But the Notice said, get out of the Waterman’s Arms.

The Judges said in 1803  – “By reference to the background, the notice was construed as referring to the Bricklayer’s Arms. The meaning was objectively clear to a reasonable recipient, even though the landlord had used the wrong name.”

So what’s this, used the wrong word? – OK, no problemmmo we can ignore that and pretend you didn’t.

Reginald Perrin, when he was approaching his breakdown, took this approach. He just used the word nearest to hand when the correct one escaped him. The word nearest to hand was usually parsnip. [Sometimes, two – fish slice].

OK so that’s the law, you can use the wrong words as long as we can all work out what you mean.

Yebbut and contrariwise, if the Owner has named the wrong pub, that didn’t matter, but if he had served the notice too late under the terms of the lease, that would matter. Because if a lease says six months, it doesn’t mean six weeks, does it.

“Months” not “weeks”, they’re different words. Oh look, see what I did there.

From the same 1997 case in which the 1803 case was discussed, Lord Hoffman said that ignoring the written terms of an agreement was quite different from using the wrong words. He said “If the clause had said that the notice had to be on blue paper, it would have been no good serving a notice on pink paper, however clear it might have been that the tenant wanted to terminate the lease”

OK so now we all understand, let’s move on.

Contract law:-.

If I say to you, “can I buy your car tomorrow for £2000.00” and you say “yes, come round at eight to pay me and drive it away”, we have a contract. We might even shake hands, doesn’t matter if we don’t.

But English law has always viewed contracts involving rights in Land as requiring more formality than contracts for cars and goods.

Here is the law for a land contract:-

Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989

It provides:

“(1) A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all of the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.

…….

(3) The documents incorporating the terms or, where contracts are exchanged, one of the documents incorporating them (but not necessarily the same one) must be signed by or on behalf of each party to the contract.

OK, we’ve got that. IN WRITING. In ONE DOCUMENT or in TWO DOCUMENTS EXCHANGED

And

SIGNED.

The law was created in 1989. I was using Lotus Notes in 1989. It enabled me to send emails to a limited number of people in a group all using the same program. The idea that the formalities of a contract for the sale of land as stated above could be met by the transmission of emails would not have held much sway in 1989 I suggest.

So using the Humpty Dumpty definition, should we discover what the words mean by looking to see what was in the minds of the legislators in 1989? If so I’m thinking – written or typed paper, with signatures in ink. Certainly that what I was taught in seminars in 1989.

So how did the Courts decide in This case link here -Click it- when asked whether an email could be a written document and whether it could include a signature?

Simples, YES.

An email will pass the test of being “in writing” and being “signed” if the “signer” includes in it “their name details with the intention of designating the party to be charged, and for the purpose of making a contract which should be binding”.

So there we are, it has been settled law from as long ago as 2006 that a string of emails which are never actually printed out, can be both in writing and signed.

Even though parliament did not say this, and are presumed not to have used the wrong words in the parsnip sense, nor envisaged this result as even a possibility.

So sometimes, it’s not the words  that mean whatever Humpty says he wants them to, – it’s the Law being whatever the Judges decide that acceptable commercial practice requires the Law to be, never mind either the words or the meaning of the relevant statute.

Anyway surely 2006 was long enough ago for the message to get through to everyone, that if you don’t want your email to be capable of being a binding contract in England or Wales  , just add the phrase “Subject to Contract”. I mean, you can set it automatically.

Though it may seem a bit odd to your non-lawyer friends if you do, when you email them to say, “See you in the Pub at 6.00 pm – subject to contract.”

Why am I telling you all this? A friend has sent me an email with this link . -Click It- A case where the sending Solicitor intended apparently that his email should not be binding upon his client – but Oh Dear – it was.  The full case is here This Link -click it- and it graphically confirms that emails are definitely well worth the paper they’re not written on.

And in spite of what some email services might tell you, once an email has been sent, it’s not retrievable.

And here’s a thought – The Royal Mail is still open for business. -Please Mr Postman- Click here

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

 

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

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