Senior magistrate from Trinidad and Tobago after 20 year legal battle vindicated by the privy council
Senior Magistrate Felix Durity was suspended in August 1989 by the Judicial Legal Services Commission in Trinidad and Tobago. It had been reported that he had been guilty of misconduct. Many months elapsed before the Commission referred the matter to an investigating officer. Mr Durity took exception to the way the Commission dealt with the case and his first complaint was that the suspension was mis-conceived and the misconduct that was alleged against him related to decisions that he took in the performance of his judicial duties as a magistrate. The second complaint was that he was treated unfairly by the Commission because there was a delay of about 33 months before charges against him were investigated. The issue was whether or not the Appellant was entitled to constitutional relief for these complaints.
Mr Durity went through many stages in his fight for justice and had twice come before the Privy Council in 2002 and 2003. He had remained under suspension for nearly 7 years from August 1989 to May 1996. In April 1997 he took early retirement.
The suspension had its origin in a bail application that was made to the Appellant in his judicial capacity in February 1989. The advice to Her Majesty was given by Lord Hope of Craighead in favour of Mr Durity setting aside the decision of the Trinidad and Tobago Court of Appeal and restoring Orders made by a previous trial judge. The Attorney General of Trinidad and Tobago was ordered to pay the costs of Mr Durity.
Mr Durity was delighted at the outcome but saddened at the blight on his career.
Is the Englishman’s Home still his Castle?
When the expression “an Englishman’s Home is his Castle” was first used, it was meant that it would be safe from creditors and represented all that was great about capitalism in the West. The concept has been eroded by tax in the form of Inheritance Tax, divorce, insolvency, and last but not least, by recession.
From a wealth creation point of view, amongst all of the other alternatives it still remains one of the best investments. Recessions come and go, wives and husbands come and go, and Chancellors come and go, but the Englishman's home still remains a pivotal and key element to Western family life and wealth creation for its members that can effectively be passed on to future generations.
My usual advice to clients when they start on the property ladder with their first purchase is to try and buy the most expensive property they can possibly afford with the maximum borrowing possible. The cost of acquisition these days, particularly in London with Stamp Duty Land Tax starting at 1% and 4% for over £500,000, is usually the most expensive part of the acquisition process by a long shot. (It is still one of the lowest rates in Europe and although it may be politically sensitive in the current economic climate, it is highly likely the Chancellor will seek to raise this). This Stamp Duty applies whether it is the principal residence you are purchasing or an investment buy-to-let. The great tax-effectiveness of the principal family home is that it is totally free of tax on re-sale, regardless of how much capital appreciation is made. This is in my view the safest and most cost effective way of acquiring wealth.
If you have been fortunate enough to purchase in inner London in the last 20 years you will have seen the value of your property double almost every 10 years, and even in the current recessionary trend you will still have made an excellent investment. One should therefore seek to maximise this opportunity as much as possible by aiming to upgrade into a more expensive family home as often as you can possibly afford.
With the current Inheritance Tax, total spousal exemption on the death of the first spouse and the ability of the surviving spouse on his death to utilise both nil rate bands (currently at £325,000), the last spouse’s estate can enjoy a total exemption of £650,000.
Acquiring a portfolio of buy-to-lets has in the same breath, also never been as attractive with Capital Gains Tax rates now at an all-time low of 18%. This however is a potential likely target by the Chancellor in his current revenue-raising mood.
Anyone who has owned a portfolio of buy-to-let properties will have experienced the headaches of falling rental markets, difficulties with tenants, spiraling maintenance costs and so on. It is very easy for the potentially attractive income returns to be eroded by service charges, maintenance, letting fees, voids, and worse, tenants against whom you need to sue.
Family homes in excess of £1million, and they are not so uncommon in London, may present particular challenges to the tax planning practitioner but in my view these problems are often exaggerated. With the current demographic trend for the greying population to remain grey for a longer time, it doesn’t take much imagination to realise that you will have a considerable financial need of both capital and income in your old age.We are fast approaching a situation where some people will live longer in retirement than they did in work. 24-hour nursing care may be required which can cost anything from £30,000-£75,000 per annum.
Home Office: The biggest shake up in Immigration History
The Point Based System (PBS) was introduced by the Home Office from the end of 2008. They proclaimed that it is akin to the Australian’s immigration system and called it ‘the biggest shake up in immigration history’. They also claim that it is a point scoring system when it is in fact an arbitrary system full of mandatory requirements.
The karma of the poor and hasty implementation of the PBS, especially the notorious £800 requirement for the Tier 1 (Post-Study Work) applications has resulted in many appeals. Earlier this year, I represented a client at a hearing. The judge had the wrong version for the Tier 1 (PSW) applications guide not surprisingly because the Home Office had published 4 versions in 7 months! I was not surprised to find out that even the Home Office representative was unsure as to which version was the latest!
The problem is made worse by the Home Office’s practice of frequently changing the immigration rules and guidelines and implementing the new rules on the same day as they were published! Not just the temporary residence categories are involved. The Home Office made a press release to say that the point scoring system is to extend to citizenship applications because they were of the view that in the past, foreign migrants qualified for citizenship far too easily.
The Path to Citizenship consultation paper is about policing entry of the migrants to a further period of temporary leave, also known as the ‘probationary citizenship’, which will subsequently be a basis to apply for naturalisation. The paper suggested that there is limit to the number of migrants progressing to probationary citizenship each year. Quota apply to migrants who come to the UK under the PBS to qualify for the probationary citizenship but not to those who have qualified to live in the UK outside the PBS, for example, refugees and dependants of those who are already present and settled in the UK. This could mean that if a large number of refugees and family members apply for probationary citizenship in any one year, nobody under the PBS would be successful. This is not an unlikely scenario given the theatres of conflict currently raging in the world at the moment.
The Immigration Law Practitioners Association (ILPA) foresees many challenges to refusals of the probationary citizenship. Many affected migrants would have lived in the UK for at least 5 years and would have an arguable case under Article 8 of the European Convention of Human Rights (ECHR) that disruption of their established private and family life would be disproportionate. This would be a disincentive to people looking to come to the UK to study or work as they could be, as described by ILPA, ‘arbitrarily and unpredictably be uprooted’ at any time.
Is it the biggest shake up or is it a sham, political window dressing to satisfy a baying right wing voter to curb immigration? Is it of real concern to human rights lawyers? The PBS will claim its victims, namely foreign migrants who have been here for a few years but discriminated against by frequent rule changes. Any system that is arbitrarily subject to change on short notice in respect of which the casualties of those changes have no rights of appeal or redress must be of concern to not only human rights lawyers but also the ordinary citizen.
This country has a long history of immigration and the contribution of successive generations of immigrants to the economy and culture has been positive. They deserve a better transparent and stable set of rules to be able to plan ahead and have some security for their future destinies as would befit guests in residence. Anything less than this ought to be offensive to the ordinary citizens sense of fair play.
Soon Yeap, Trainee Solicitor and Immigration Specialist
 
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Model School AwardsPartner Dr Zhu is the headmistress of the London Mandarin School which has over 200 students. The School was awarded a ‘Model School’ award by the Overseas Chinese Affairs Office of the State Council. Only fifty eight schools worldwide were awarded this status and only one in London. Dr Zhu said that her school works hard to provide Chinese education and cultural exchange to local communities. The School is a registered charity and donations are therefore tax deductible. For further details visit www.london-mandarin-school.org. |
Agents Commission
Cruickshanks won a case for a purchasing client being sued for two commissions last Thursday in the Uxbridge County Court.
Agent 1 had shown the property to the ultimate purchaser not once but twice but failed to follow up and extract an offer. Purchaser views same property but a month later with Agent 2.
The previously well settled concept of "introduction" as being the trigger event for payment of commission no longer applies.
The test is that applied by the Court of Appeal in Foxtons v Pelkey Bicknell [2008] EWCA/Civ 419.
Which agent was the effective introducer of the purchaser to the transaction, not just the property? In assessing what is “effective” the court considers what role the agent played in the negotiations on price and terms etc.
Agent 2 succeeded because he had negotiated on price and sheparded the smooth passage of the transaction. Our client received a full costs award.
Moral of the story be carefull if sueing for a disputed commission as each case still may turn on its facts and if you fail, your legal fees may equal if not exceed the "lost" commission.
