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Missing Presumed Dead

What happens if a person goes missing and is presumed dead? Apart from the emotional issues, dealing with their property and personal affairs can be problematic and legally complex.

However, from October 1st 2014 the remaining provisions of the Presumption of Death Act 2013 come into effect which will introduce the presumption of death procedure in England and Wales. Presumption of Death Certificates will be able to be issued. They will be the equivalent to Death Certificates and can be applied for by an ‘interested party’ such as a close relative of the missing person. There must also be a connection between the missing person and with England and Wales: for example the missing person must have been domiciled in England and Wales on the date last known to be alive or habitually resident in England and Wales for the preceding year.

The Act also provides for what should happen if further and different information is later found or if the person is found alive.

The declaration of death will be effective for all purposes, for instance it will automatically dissolve a marriage or civil partnership.

The legislation is to be welcomed as it creates a simpler legal framework to enable those left behind to better deal with the property and affairs of a loved one who has gone missing and is presumed dead.

Lori Harley

Marsh Brown and Co

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The Sea Empress Principle

In February 2008 in a joint-Opinion in the Humber Pilotage Case (Brammer &Ors v Associated British Ports PLC), Andrew Edis QC and Nigel Jacobs QC advised that the principle which was identified in the Sea Empress case (that the highest possible standards need to be maintained by a port authority in any compulsory pilotage area) was unlikely ever to be challenged. In April 2008, the case settled out of Court on terms agreed inter-partes. In October 2008 Captain James Scott Chestnutt RN (Southampton Harbour Master and Marine Adviser to ABP) admitted that ABP would never have gone to Court in the Humber case. Although his admission was made on a  social occasion, his admission was made to me personally when he said, “ABP would never have gone to Court in that case. Never, ever, in a thousand years. By obliging them to agree terms, you won that case.” Chestnutt then told me that ABP “could not believe its luck” when the Humber Pilots originally failed to apply for Judicial Review of ABP’s decision to terminate a pilotage arrangement on a time scale which precluded the maintenance of existing minimum standards of experience.

It came as shock, therefore, when nine months later on 29th  June 2009 the then Shipping Minister (Paul Clark MP) wrote to Julian Brazier MP, saying, “The Department [for Transport] does not accept that there is a legal requirement  for all Competent Harbour Authorities- a harbour authority that runs a pilotage service – to provide this service to the ‘highest possible standard’ at all times, with no exemptions or scope for compromise. Given the context, it also seems unlikely that this phrase, as used by Mr Justice David Steel in his judgment in the Sea Empress trial at Cardiff Crown Court in 1999, was intended to set a common law precedent for all harbour authorities, in the way that Mr Youde suggests.”

Since 29th June 2009 (the date of the DfT letter) the Department has been asked on countless occasions to provide any authority for its view as stated therein (i.e. as to precisely what was meant by the Sea Empress Judgment of Steel J). The Department has failed consistently to provide any authority at all.  Not only has the Department failed to provide any authority (legal or otherwise) for its view, but also, since the date of the Steel judgment in January 1999, there have been two further significant legal developments. In April 2000 in the Court of Criminal Appeal, the Lord Chief Justice Lord Bingham approved the judgment in express terms, observing that the harbour authority in question (Milford Haven) had, subsequent to the Sea Empress incident, taken steps to comply with the principle and that on that ground, amongst other grounds, a reduction in criminal penalty should  be allowed.

The second legal development since the Steel judgment of January 1999 is that in 2003 by the adoption of Resolution A960 the International Maritime Organization (under the aegis of the United Nations Organisation, of which the United Kingdom is a Founder Member) recommended that the maintenance of developed standards in marine pilotage should be a matter of enforcement; thus providing clarification of the position in international law.

To the present day, the Department for Transport denies that the Clark letter of 29th June 2009 was in error; but simultaneously fails to provide any authority for its denial. Not only is the DfT at Westminster exposed as lacking in authority but also, in a Report dated 7th March 2013, it was noted by the House of Commons Select Committee on Transport that the Shipping Minister has a major task on his hands to restore public confidence in the Department. It thus becomes clear that the Members of the Select Committee (as representatives of Parliament)  recognise the flaw in the Departmental denial of the legal validity of the Sea Empress judgment. It is trite to point out that neither the Department nor the Shipping Minister are above the law. The only true answer to the question “What authority might there be to deny the validity of the Sea Empress principle at common law ?”  is that there is none.

It is unnecessary here to recite further the history of the laws of pilotage, save perhaps to point out that the Department itself, in a Report dated April 2002 observed that, “ A proper assessment of the interests of safety is relevant. Whatever they [i.e. the interests of safety – B.Y.] are, the authority retains the duty to provide  [pilotage services] and all the obligations and liabilities which follow- and will be held accountable accordingly. The prosecution of the harbour authority after the SEA EMPRESS shows that these are strict and onerous”.

It seems to follow, therefore, that any attack upon the principle that the highest possible standards are required of any harbour authority which elects to maintain a compulsory pilotage area is unsustainable. As a matter of law, the principle is well found. As a further legal point, there remains no challenge to the Sea Empress principle; and it remains equally the case (as identified by Andrew Edis QC and Nigel Jacobs QC more than eight years ago) that the principle is unlikely ever to be challenged.

Barrie Youde

RA Wilkinson & Co

 

www.SeniorLiving.Org

VAT Penalties: Recession was reasonable excuse for Late Payment (First-tier Tribunal)

Penalties may be charged by HM Revenue & Customs on the late payment of tax, and the First-tier Tribunal has recently considered a case where VAT was paid late.

Eight late payment notices were issued between September 2010 and December 2012. The appellant had been trading since 1986 and had previously paid VAT and PAYE on time.

The reasons given for why the payments were late included:

i)             customers dictating unfair payment terms, in excess of 60 days, and

ii)            restrictions on bank lending.

Consideration was given to steps taken by the appellant to improve the business cashflow, such as giving up his company car and introducing capital through his personal credit cards.  The Tribunal noted that the appellant had not sought a Time to Pay arrangement with HMRC, however, which ought to have been considered.

In considering the penalties originally, HMRC withdrew five of the notices but three remained, as it considered that the shortage of funds in those three periods arose from the normal hazards of trade.  The matter was referred to the Tax Tribunal for consideration.

The tribunal disagreed, holding that the effects of the recession were different to the normal hazards of trade, commenting that the lack of funds had not been reasonably avoidable and the appellant had done everything he could to meet his obligations.

Whilst First-tier Tribunal decisions are not binding and are based on a case by case basis, this is a useful indication for businesses considering appealing late payment notices where the reason for late payment was caused by cash-flow issues arising from the recession.  A lack of funds is not in itself a reasonable excuse for non-payment of VAT, but the wider circumstances surrounding such lack of funds may be.

Scrimsign (Micro-Electronics) Ltd v HMRC [2014] UKFTT 866 (TC) (03 September 2014) (Judge J Gordon Reid QC FCIArb) (Bailii).

Contact us today for more information!

Hands

Caveat the Litigant in Person.

When acting for a Client who had obtained Default Judgment (in default of acknowledgement), Notice was received of an Application by the Defendant/litigant in person to set aside the Judgment (hence acknowledging the Claim). No Defence was filed. The Application was based solely on the Applicant’s contention that the Claim had not been received before Judgment had been entered. All addresses were correct and the Notice of Issue confirmed that service was deemed effective.

At the day before the Application hearing (last week), still no Defence had been filed or served. At the Application hearing the Applicant/Defendant produced a note which made clear his wish to Defend. Notwithstanding the deemed service of the original Claim and the last-minute expression of a wish to defend (several months after acknowledgment of service), the District Judge allowed the Litigant in Person a further 14 days in which to file a Defence.

 

EHL Group Delays for money on completion

What happens if there is a delay in sending money on completion?

The monies have to be sent to the property seller’s conveyancer/solicitor by a certain time on the agreed completion date: “a cut off time”.

This money needs to be obtained from you / or your lender in sufficient time in order to achieve the “cut off time”.

If the money is not received by the time assuming the seller is ready to complete then:-

  • The Seller is entitled to charge you the purchaser interest on the balance of purchase price, as set out on the Contract, normally 4% above Barclays Bank base rate. The interest has to be paid and in addition to other amounts due at completion, at the time completion finally takes place.
  • (May have to pay the seller further compensation as a result of your failure to complete the contract on time).
  • Seller may serve a notice to complete! This requires you to complete within a 10 working day period after the date of the notice. If you fail to do so, the seller can withdraw from the sale and keep your deposit.  Alternatively they may issue proceedings seek you to honour the Contract and complete the purchase.

 

Commercial2

Quick update – legal

In the case of Dowdall v William Kenyon & Sons Ltd and Others (2014) EWHC 2822 the High Court has exercised its discretion pursuant to s.33 of the Limitation Act 1980 to allow the Claimant, who had contracted Mesothelioma, to proceed with his claim against the Defendants, notwithstanding that he had previously compromised a claim involving eight other Defendants for asbestosis causing a disability of 10-15%.  In the earlier action it was also agreed that the Claimant had a risk of developing other types of asbestos related injuries including Mesothelioma.  The court confirmed that such proceedings did not amount to an abuse of process.

Pilotge-Law

Marine Pilotage, Statutory Protection and Strict interpretation

It is refreshing to hear very recently from Canada of the case of the Cape Apricot, ( Federal Court, T-2259-12 – unreported) where in February 2014 the decision of the Court turned upon compliance or otherwise with local marine pilotage regulations.

A ship under compulsory pilotage (the Cape Apricot) had incurred damage liability of 60 Million US Dollars. Here was a case in which the owners of the vessel, following faulty navigation, alleged that the pilot was not properly qualified in accordance with local regulations.

If it could be shown that the allegation of non-qualification as a pilot in accordance with local regulations was well founded, the pilot then would be at personal risk of liability to make good the damage at $60 million; as the statutory protection (equivalent of Section 22 of UK Pilotage Act 1987, which sets a limit of £1,000 on the civil liability of an authorised pilot) for properly qualified pilots would not then apply. This was no trifling matter.

The local requirement in the case was not merely that a licensed pilot should hold a Master Mariner’s Certificate but also that he was “able to meet” that requirement. At the time when the damage was caused, the pilot had allowed his Master’s Certificate to lapse; and there was therefore scope to challenge his entire qualification. He was, however, able to revalidate his Certificate without difficulty by showing that de facto he had complied with all of the requirements of the Certificate (CPD etc); and that the matter of re-validation was a mere clerical exercise.

On that basis, he was “able to meet” the requirement to hold a Master Mariner’s Certificate. His pilot’s licence was therefore valid. Fortunately for the pilot there was no breach of the local regulations and his statutory protection thus continued to apply.