Fly-tipping and Waste Offences

House holders and businesses of any size should be aware of their duty of care for the disposal of waste.

For householders, this duty extends beyond ordinary household waste to include the discarding of old appliances, carpets and furniture. If a tradesman or business transports or disposes of waste as part of their business, or deals with or manages waste, they will need an appropriate waste management licence from the local authority.

Fly-tipping is typically investigated as a suspected breach of sections 33 and 34 Environmental Protection Act 1990. Section 33 prohibits the depositing of controlled waste in or on any land without a permit. The meaning of “controlled waste” is wide and includes any substance or object which the holder discards, intends to or is required to discard.

Section 34 imposes a duty on any person who imports, produces, carries, treats or disposes of controlled waste to take reasonable measures to prevent any other person breaching section 33.

Section 34(2A) imposes a duty on the occupier of any domestic property to take reasonable measures to secure that any household waste is transferred only to an authorised person or carrier.

DEFRA has issued a Waste duty of care Code of Practice which can be taken into account where appropriate in any proceedings.

Part 5 of the Code explains the duty of care of occupiers of domestic property and how they can show how they have met it. The duty of care relates to the transfer of waste only. If a tradesperson is working on the property, they are responsible for disposing of the waste they produce. Householders are advised to ensure that their trader’s quote includes the cost of disposing of any waste they produce as part of the job.

Councils have powers to investigate and prosecute waste offences. The Environment Agency will investigate the more serious offences. Section 33 offences are punishable by up to 5 years imprisonment or an unlimited fine. Section 34 offences are punishable by a fine, or a fixed penalty notice for the less serious cases.

If the council suspects a waste offence has been committed, they can invite suspects to attend an interview under caution. The council must have regard to the Police and Criminal Evidence Act codes of practice. An individual is entitled to know the nature of the offence and why they are suspected of committing it before the interview. There must be reasonable, objective grounds for the suspicion based on relevant known facts or information.

If you have received an invitation to an interview under caution about a suspected waste offence, we can provide advice and assistance tailored to suit your individual needs.

No General or Statutory right to a VAT Invoice

The High Court found that a customer has no general or statutory enforceable right to require a supplier to provide a VAT invoice. (See Royal Mail Group Litigation v The Royal Mail Group Limited [2020] EWHC 97).

The issue arose following the European Court of Justice’s ruling in 2009 that VAT was chargeable on postal arrangements that were individually negotiated. It had previously been understood they were exempt. UK VAT legislation was revised to comply with the ruling. The claimants sought to require Vat invoices from Royal Mail so they could reclaim input tax from HMRC in relation to the periods before the legislation was changed.

Although regulation 13(1) Value Added Tax Regulations 1995 sets out an obligation for the supper to provide a VAT invoice where a relevant taxable supply is made there, this is not directly enforceable by a customer. The High Court relied on various factors, including that the legislation allowed HMRC to accept alternative evidence of payment of input tax (see 29(2) Value Added Tax Regulations 1995). Further, that the form and timing of the invoice was variable at the request of HMRC. In addition the legislation provided for penalties in the event of non-compliance. The court considered Parliament could not have intended for private parties to have directly enforceable rights against their supplier.

The High Court considered the contract did not require Royal Mail to render a VAT invoice. In the particular facts of this case, it was not possible to imply such a term. The claimant tried to argue that such a term was implicit in contracts between parties registered for VAT. However the court considered that could not be the case where both parties understood that VAT was exempt.

Conclusion

Zipvit Ltd v HMRC [2018] EWCA Civ 1515, involved similar facts and the court of Appeal rejected the customer’s attempt to reclaim input tax. The customer tried to argue that they should be entitled to recover the VAT in the absence of VAT invoice on the basis of HMRC’s discretion to accept alternative evidence. The Court of Appeal found the contract provided for VAT exempt supplies. The purpose of regulation 13 was to allow HMRC to monitor that the supplier had paid the VAT. Accordingly the customer was not able to provide satisfactory alternative evidence that VAT had been accounted for by the supplier.

The case demonstrates the importance of clear contractual terms to make provision for VAT, and the requirement of VAT invoices. In the absence of a contractual right there are no general or statutory rights to assist a customer.

What constitutes defamation on social media?

A Supreme Court case has provided helpful clarification on defamation from social media posts.

The case concerned comments made by Mrs Stocker about her ex-husband Mr Stocker, to his new partner on the social media website, Facebook. These comments included the words: “he tried to strangle me”. In response, Mr Stocker brought a defamation claim because while he admitted he had throttled her he objected to the word “strangle”. After all, the dictionary definition of strangling includes having an intent to kill, which was not the case.

Mrs Stocker defended the claim. She argued that the word “strangle” was not defamatory because she had not used the word “strangle” in the dictionary sense of intent to kill, she had used the word in its colloquial sense of violently gripping her neck. She claimed that the content of social media posts should be interpreted in this informal context, not by strict dictionary definition.

The Supreme Court found that Mrs Stocker was correct and that words used on social media must be seen in the context in which they are used. Words may be given less weight than if they had been made in a more formal setting, such as a journalist writing in a newspaper.

Caution will always be needed when writing on social media but this case confirms that courts will take a common-sense view on what was meant by words online.

Although judges in the lower courts have pointed up the importance of “context” in libel actions based on social media posts, this is the first time the Supreme Court has ruled on how people write and read them.

Such posts are not to be treated in the same way as a carefully considered newspaper article.

Lord Kerr said: “It is wrong to engage in elaborate analysis of a tweet; it is likewise unwise to parse (analyse) a Facebook posting for its theoretically or logically deducible meaning.

“The imperative is to ascertain how a typical (i.e. an ordinary reasonable) reader would interpret the message.”

The effect of the ruling is that the meaning of words on social media should not be “pushed up” to benefit those claiming to have been in libelled, and judges should give more leeway to defendants who post in haste for those who read somewhat fleetingly.

We were recently instructed to act for a Defendant in a highly contentious High Court defamation claim arising from a twitter exchange. The Claimant sought an injunction, together with significant damages and costs, we were delighted to secure a speedy and successful outcome. We have also managed to prevent a competitor from defaming a client in the leisure industry.

Acting quickly and decisively when dealing with any alleged defamation issue is vital. Your reputation can be quickly defended by our experienced and knowledgeable litigation team.

Our experts can also help you to defend a claim if someone has accused you of defamation or slander. We act swiftly and decisively to get the desired outcome and to protect your reputation.

More Issues with CBD

It has been reported by The BBC that Oils, snacks and drinks containing the cannabis extract cannabidiol (CBD) will be "taken off the shelves" next year if they do not gain regulatory approval.

The Food Standards Agency (FSA) said products had to be registered by March 2021 or they would be pulled.

Despite rising sales of CBD goods, not one product has been approved in the UK yet, raising safety concerns. The FSA said producers had been slow to submit their products for approval, forcing it to impose the deadline. It had been hoping individual companies would come forward with product information. But as none provided enough documentation, the regulator is now forcing them to – or threatening to take them off the shelves.

For companies hoping for a slice of the UK’s multi-million pound CBD industry, that’s a big incentive to comply.

The FSA has also issued new advice on CBD use, saying it should not be used alongside other medication.

The Medicines and Healthcare Products Regulatory Agency (MHRA) has said that products containing CBD that are used for medical purposes are medicine. Medicinal products must have a product licence (marketing authorisation) before they can be legally sold, supplied or advertised in the UK, unless exempt.

We have written extensively over the last year about the issues and problems surrounding the importation and sale of CBD in the UK and have acted successfully for both individuals and multinational companies on the procedures and regulations surrounding the process.

Currently, the UK Border Force does seize goods which contain traces of cannabis and/or THC, it has been difficult to challenge their right to forfeit the goods until recently. We have challenged such seizures for clients and sought restoration, with some success. Each case though is different. We have been instructed on such issues from clients in the UK, Europe and the USA.

Rogers & Norton’s HMRC and Border Force litigation team specialise in handling HMRC Border Force claims relating to the detention and seizure of a wide variety restricted goods in addition to VAT, Tax, Duty and Tariff issues. We are challenging seizures and seeking restoration on a variety of goods, in addition to challenging Assessments.

The team deals with the worldwide importation of goods to the UK, including the huge market from China. We work with clients who want goods restored at all major ports of entry, such as Felixstowe and London Gateway, together with Stansted, Gatwick & Heathrow.

We have a strong understanding of Border Force systems and can act quickly and decisively to support our clients in getting their goods restored through the High Court, First Tier Tax Tribunal and also injunctions and Judicial Reviews.

Change to Statutory Legacy

As of the 6 February 2020, the statutory legacy in situations of intestacy has increased from £250,000 to £270,000.

The statutory legacy was first introduced in 1925 and is an amount that a surviving spouse or civil partner is entitled to when the deceased died intestate. Its purpose is to protect the surviving spouse or civil partner’s interests and also ensure the deceased’s children’s interests are equally protected.

Should the deceased have no children at the date of death the entire estate would pass to the spouse or civil partner.

The law does limit the entitlement to those who are married or in a civil partnership. If a couple has divorced or a civil partnership has been legally terminated they will not inherit any part of the estate. Even if a couple lives together but remains unmarried, partners are not entitled to anything. To avoid this situation it would always be advisable to write a legally valid Will, this will ensure that any wishes as to where the estate will go are properly executed.

We have acted in numerous cases where this has been an issue. One example was a long-term partner of a man left severely disabled after having a stroke. He had no Will in place, no capacity to make a Will and little hope of ever gaining the capacity to make a Will. As they were not married and he had no known family it was likely that his estate would pass by intestacy to the Crown. To ensure the benefit of his estate passed to his long-term partner we had to make an application to the court for a Statutory Will to be put in place.

With more and more couples choosing to remain unmarried but cohabiting, it is imperative that they understand that without a legally valid Will in place they will not automatically inherit the benefit of their partner’s estate if their partner dies.

Many people worry about making a Will but it is one of the most important things you can do. It need not be expensive but it is worthwhile getting full advice to ensure that your Will accurately records your wishes and provides for your loved ones in the way you wish.

At Rogers & Norton, our focus is on delivering a sympathetic, cost-effective and tailored solution to your individual needs, whatever your circumstances.

Litigation Team Success for US Company

The Rogers & Norton HMRC and UK Border Force Litigation team were delighted to help with the restoration of goods worth several hundred thousand pounds for an American company importing goods into the UK.

The items were seized shortly before Christmas and created significant consequences for the company at a challenging time of year to find a solution to the problems they had with HMRC. The goods were destined for companies in the UK and could mean our client would be in breach of contract should they not fulfil the order and it may ultimately tarnish their hard-earned reputation for quality service.

Our specialist team that deal with HM Revenue and Customs (HMRC) claims, in particular relating to the detention of goods, seizure of goods, understood the need to react quickly to get the goods restored, as the effect on cash flow together with the potential impact on jobs, would be problematic for any company.

HMRC accepted our assertions that whilst our client understood their shipping agent had made an error, the issue in question concerned only a very small proportion of the consignment and had no consequences to the HMRC regarding the payment of more duty.

It was also noted that our client had never had any previous dealings of this nature with HMRC Border Force and that their actions could be seen as disproportionate against the alleged offence.

We have a wide experience in dealing with detentions, stoppages and the seizure of goods by UK Border Force. The team deals with the worldwide importation of goods to the UK, including the huge market from China, Europe, America and Mexico. We work with clients who want goods restored at all major ports of entry, such as Felixstowe and London Gateway, together with Stansted, Gatwick & Heathrow.

We are experienced in Magistrates Court proceedings; First Tier Tax Tribunal; Court of Appeal; European Convention on Human Rights; Administrative Court and Injunctions and can assist with Tax, Duty and Vat claims and issues.