Generally the comments, whether on the original article, on reddit, on digg, or on various blogs that have also posted the story, appear to be completely idiotic. Almost everyone is up in arms that such a terrible thing could happen, with some even going as far as calling for the judge to be removed and the HOA president to be fired. If they’re lucky, that is. Some commentors seem to want either or both of them to be tarred and feathered instead.

Most seem to ignore the fact that the behaviour of dear Mr Prudente is much more imbicilic than any HOA rule. The facts are actually quite simple, if you can get past the over-sensational nature of most of the reporting. As part of the covenant for living where he does, Mr Prudente has a obligation to keep his lawn maintained in a certain manner. He entered into this agreement freely and has presumably complied with it for the last ten years, but has recently stopped doing so. He ignored a series of letters asking him to rectify this, so ended up being taken to court to enforce performance.

Rather than attending and pleading poverty, he chose to not even show up for the trial. In a civil matter the court process basically boils down to a simple formula: each side gets to make their case in turn, and the judge rules which is most persuasive. If you don’t bother to turn up, it’s taken as you not making any case at all, and the other side will pretty much always be more persuasive than you! So, unsurprisingly, he lost and was ordered to bring his garden into line within 30 days. A month later, having still not done so, he also had fees awarded against him, presumably after again not turning up to argue why they shouldn’t be.

In September, 3 months after his “Do this within 30 days” period had expired, having continued to completely ignore the order of the court, the judge found him in contempt. Judges generally don’t like being ignored. But the judge gave him a final chance, offering him another 30 days period to comply, and warning him of the consequences of continuing to just ignore it.

A month later, Mr Prudente discovered that judges aren’t joking when they tell you “Do this or go to jail.”

It’s really a simple system. When a court orders you to do something, you either comply or appeal. You don’t just stick your fingers in your ears and declare “Nah! Nah! I can’t hear you!”

Is the rule that requires homeowners to keep their grass maintained in a certain manner a stupid one? Possibly. I doubt I’d want to buy a house somewhere that has that sorts of requirement. But mostly that’s irrelevant. The “victim” here agreed to it. Should he go to jail for breaking it? Absolutely not. But he hasn’t. He’s gone to jail for repeatingly ignoring a court order. And should people go to jail for that? Absolutely.

I could blog every day about the insane laws that are being passed with alarming frequency in the US and UK, and rant about where the legal systems are running wild. But this isn’t one of those stories. It isn’t even close to one. This is simply: “Man sent to jail for continuing to refuse to do what a judge tells him.” Please find something better to be outraged about.

The supply of food is in general zero-rated for VAT: see section 30 and Schedule 8, Part II, Group 1, item 1 of the Value Added Tax Act 1994. But there are exceptions. One exception is confectionery: see item 2 of the Excepted Items. But there is an exception to that exception: cakes or biscuits are in general also zero-rated. There is however an exception to that exception to the exception, namely biscuits wholly or partly covered with chocolate. They are standard-rated.

For many years, starting with the introduction of VAT in 1973, the Commissioners of Customs and Excise took the view that Marks & Spencer teacakes, which are covered with chocolate, were biscuits and therefore standard-rated. Marks & Spencer accounted for VAT on that basis. But in September 1994 they admitted they had been wrong. They were actually cakes and should have been zero-rated. Marks & Spencer claimed repayment of all the VAT for which they had wrongly accounted over the years, totalling £3.5 million…

— Marks and Spencer plc v. Her Majesty’s Commissioners of Customs and Excise

And of course, just like anything that’s determined by law, there has been much argument over what that law actually means.

I discovered a wonderful case recently in the Company Law Reports: Registrar of Companies v Radio-Tech Engineering. The rule for accounts is that they must be filed within 10 months of the financial year end. This company’s year end fell at the end of September, and so they filed their accounts at the end the following July, on what they believed to be the latest possible date for filing. They were promptly hit with a £100 fine for late delivery!

The argument boiled down to whether or not 10 months from September 30th is July 30th or July 31st. As accounting periods end on the last day of the month, the company claimed it was only natural for the filing period to run to the last day of the month as well. The Registrar claimed that 10 months from any date was until the equivalent date in that following month.

This followed a ruling by Lord Diplock in Dodds v Walker, where he stated that: “the general rule is that the period ends on the corresponding date in the appropriate subsequent month, ie the day of that month that bears the same number as the day of the earlier month on which the notice was given. … Because the number of days in five months of the year is less than in the seven others the inevitable consequence of the corresponding date rule is that one month’s notice given in a 30-day month is one day shorter than one month’s notice given in a 31-day month and is three days shorter if it is given in February.”

It was claimed that such a rule is “simple”. But anyone who’s ever had to deal with date calculations knows that nothing is simple in this field.

Thankfully Lord Russell provided a further refinement of the rule in the same case: “Sometimes it is not possible to apply directly the principle, for instance if a four-month notice is served on 30th October (the time beginning to run at midnight 30th-31st October), there being in February but 28 (or 29) days it is not possible to find a corresponding date in February and plainly a corresponding date cannot be sought in March; the application of the corresponding date principle in such case can only lead to termination of the four-month period at midnight 28th February-1st March (or midnight 29th February-1st March in a leap year). That is an inevitable outcome.”

With such a ruling by the House of Lords many years earlier, it seems Radio-Tech had had no chance. But that was nothing compared to the case taken by Pow Trust and its subsidiary, Al’s Bar and Restaurant, against their similar fines. Faced with £100 fines each, they argued (in “protracted correspondence”) that they were a charity with limited funds, and they were only late by a couple of weeks anyway, and one of the two directors had been sick at the time. The Registrar didn’t budge, and so they sought judicial review to quash the penalties, claiming, for good measure, that the fine was an unlawful breach of their human rights.

If ever a case was doomed for failure this was it. The judge ruled against them in every way, stating that the Registrar did not have the discretion to waive the fine, as it was imposed by the Act, not the person. He then raised the obvious question: if the charity had such limited funds that it would challenge a £100 fine, what was it doing undertaking such expensive and speculative litigation – particularly without even taking legal advice. He then referred the matter to the Charity Commission for investigation.

Fighting the registrar doesn’t seem to be a good idea!

Communications operator: “Police Can I help you?”

Caller: “Yeah this is… I’ve been tired, stopped policeman, rung you up… I beat-up one of your coppers last year and I can’t get health insurance because of it. Now I know it’s over a year and I’ve been very polite and I’ve tried to ring the court …I’ve… waved down a policeman today…”

Communications operator: “Right, Madam is this an emergency 999 call?”

Caller: “Yes! I would like to talk to the sergeant at Bath Prison – Nick”

Communications operator: “Yes, Madam this is not an emergency call”

Caller: “Yes it is!”

Communications operator: “Well I’m afraid you’ll have to ring on the normal number which is…”

Caller: “What 999? I’ve just done that…”

Communications operator: “That is the emergency number for life and death and emergencies…”

Caller: “How do you know I… !!!!! they been !!!!! all day”

Communications operator: “Right, let me just warn you now that if you swear at me again…”

Caller: “You’ll put the phone down on me and I can die…”

Communications operator: “What is the problem right now?”

Caller: “I’m in agony and I’ve took all the painkillers I can… and nobody cares…”

Communications operator: “Well, have you rang your doctor?”

Caller: “(Sigh!) You ring your doctor they put you through to the NHS and then you get…”

Communications operator: “Right, so tell me something if you’ve got a medical problem why are you calling the police?”

Caller: “Because I would like to go to sleep and I don’t want to take Zopiclone because they give you a bloody hangover…”

Communications operator: “Yeah, but…”

Caller: “I don’t want to drink. I’ve been dry over a year. I’m celebrating but I actually ripped my back yesterday and I might have ME…”

Communications operator: “Right, Madam it’s five minutes to four in the morning…”

Caller: “I know what time it is…”

Communications operator: “Right, so why?…”

Caller: “I’m just trying to get some help!”

Communications operator: “Alright, I’m sorry…”

Caller: “My doctor’s told me I’m anaemic I’ve got to take more valium…”

Communications operator: “Alright, I’m cutting you off.”

— Avon and Somerset Constabulary

The basic thrust of the the ruling [pdf] is that, an unsigned form is not admissible as evidence as a statement. However, it might amount to a confession under PACE (although the judge didn’t rule on whether it actually did or not in the case in question, passing it back to the magistrates to consider).

In Dwight Yorke’s case as his agent had filled in the form on his behalf, there was no possibility of it being a confession.

It seems therefore that the best approach for anyone receiving an s172 form now might be to get someone else to fill it in for them! Of course then we’re faced with the question as to whether or not that’s complying with the obligation for the registered keeper to fill in the form …

I suspect we’ll see more action yet in this regard!

This has, of course, been the subject of much controversy, as it appears to go against the right of an individual not to incriminate himself. For a while there was a ruling by the Scottish courts that this was in breach of EC law, but this was later overruled at appeal.

For several years, more savvy solicitors have been advising clients faced with s172 requests to return the form stating they were the driver, but do not sign it.

Under rules of evidence, an unsigned admission cannot be used as evidence – and thus the form cannot be used as part of the prosecution for speeding. But, by returning the form, the law regarding s172 has been complied with fully: although the registered keeper is under a duty to identify the driver he is not required to make a witness statement to that effect.

This strategy worked in many cases, but had not been proven to do so, until last December, when the Court of Appeal overturned the conviction of John Pickford, on exactly these grounds, stating that whatever distaste the courts may have for such a lacuna, it is not the court’s place to remedy the problem, but parliament’s…

Everything, as often happens, went well for a while, but around 1990 the role of the company started to fade away. As tenants had moved out and assigned their leases to other people the membership of the company had never changed, and the departed tenants had little interest in what was now happening. To fulfill legal requirements minutes of Annual General Meetings were filed, but these meetings never actually happened.

An two-storey rear extension was built to the house, and Mr. Croom, who lives on the third and fourth floor, wanted to extend his flat out onto the top of this extension. As there would need to be scaffolding and the like around the house for this, he also suggested that the exterior of the building be repainted and repaired, and the lift be repaired.

The other tenants, whose approval is needed for these changes, did not agree to them.

So, in June 1999, Mr. Croom called a board meeting of the company, but the only other person who turned up was his aunt, who lives in one of the other flats.

Naturally, they took this opportunity to vote on the matter, and, naturally, the board agreed to his proposals.

The other tenants got together, and discovered that they could challenge this matter on the grounds that gradually, due to the absence of board meetings, every member of the board would be deemed to have ‘retired’ from the board.

The Articles of the company stated that each year one third of the directors would retire from office. If the director chooses to stand for re-election, he will automatically be re-elected unless someone else is elected in their place, or the shareholders explicitly vote not to re-elect them.

It is also stated that if the number of directors is not an exact multiple of three, then the number nearest to one third shall retire.

The other tenants argued that this would have left the board with either no directors, or a single director (neither Mr. Croom, nor his aunt), and so the board meeting was invalid, and Mr. Croom still had no right to make his changes.

This came before the High Court, and Judge Boggis gave his opinion:

The first question is how to deal with partial people: if one third of the directors are to resign, what happens if there are two, and what happens if there is only one? The articles already cope with there being two (1 resigns), but Boggis decided that if there was only one, then that one director should also retire.

But what if there was no actual board meeting at which the directors should retire? Well, in that case, following the case of Consolidated Nickle Mines [1914], the resignation is deemed to have happened on the last date on which the board meeting could have happened (board meetings must happen every year, no more than 15 months from the previous one).

But what about re-election? If there is no meeting, does the director have to make it clear that they are standing for re-election, or are they deemed to be standing unless they state otherwise? Here Boggis decided that you need to explicitly state your intention to stand
for re-election, claiming that it was common sense: “If a company cannot be run properly by holding AGMs, why should the incompetent director be deemed to stay in office merely if he says nothing?”

In response to this Mr Croom’s lawyer argued that even if the director had retired, then following the case of Consolidated Nickle, the retirement does not remove all power of directorship. However the judge sided instead with the precedent of New Seddos, where retirement cannot be only for some purposes.

So Mr Croom’s lawyer attempted to argue that the Companies Act states that the acts of a director are valid, even if later any defect is found in how he was appointed. The judge happily agreed with this, but stated that the issue wasn’t in how the directors were appointed, but that they have simply retired and not been reappointed.

This leaves the curious position where the board meeting attended by Mr Croom and his aunt was invalid, as the company had no directors. So, where now? The judge could see no reason why any of the tenants should not be members of the company, so he used the power of the court to reconstitute the membership of the company to be each of the current tenants, and forced them to call a meeting to get the company running again, and get on with the business of properly managing the property.

Our Debt Collection Service is fully computerised, fast and efficient … We believe that you, the customer, should be fully informed as to how we operate in order that you will have a better understanding of the progress of your case with us at any time … If you can get the same service cheaper anywhere else, we will match that price. We promise that if anyone offers the same service for a lower price, even by as much as one penny then we will match that price.

Some day all law firms will have to operate like this…