Hmm. Good question. These days we suffer from information overload and the modern currency is our attention, which is being actively sought every second. This attention seeking puts any attention seeking child to shame. However, these seekers of our attention are all trying to make a profit out of our attention, so their motives are in their own interests, and absolutely not ours. They give not one jot for us.

Sources of information are endless. Start with identifying your questions, this makes us focus on the problem rather than worrying about solutions.

Constructing google queries is definitely a skill in itself, so use google (etc. I use DuckDuckGo) to fashion your questions. Identify key words and jargon that begin to generate suitable looking answers. Then validate them. The internet is full of fake news, misinformation, disinformation and general rubbish. Not to mention malicious web sites. If you are not very good at this find someone who is, they may be closer than you think.

Ask your advisers. By all means validate what they say. Do ask their experience and training if you do not already know; people are usually very happy to explain these things. These being advisers you selected based on recommendations from trusted parties - not google.

My best advice? Sleep on it. Literally. See how it feels in the cold light of day. The converse of this is “act in haste, repent at leisure”.

Imagine someone steals your computers, and offers to return them in exchange for an amount of money. The amount may be small or enormous. They have also destroyed all your backups. IF you pay them, they may or may not actually return all your gear. When all is said and done these are crooks so cannot be trusted, of course.

They do not physically steal your kit. Via the internet they gain access to your computers’ data and make it inaccessible to you until you pay them for the secret code needed to gain access. The process is called “encryption”, and that needs a “key” to de crypt it. What you pay for is that “key”, which may or may not work. When all is said and done, these are crooks so cannot be trusted, of course.

IF you pay them, they may or may not actually return all your gear / give you the decryption key. As I have said above, they are crooks so cannot be trusted. On top of this they may engage in further extortion by demanding payments to not publish your data on the internet; in other words blackmail.

Here’s the problem, they gain access by acquiring internal credentials. They do this by various methods, the two most common are “phishing” and “man in the middle” (MITM) attacks.

https://en.wikipedia.org/wiki/Phishing

https://en.wikipedia.org/wiki/Man-in-the-middle_attack

Where large sums of money are involved they will even acquire physical access to systems such as those in data centres, for example by renting the rack next door so all they need is to crack a lock. Similarly physical access to server rooms at your site by using staff credentials etc.

Theft of your data allows the opportunity for identity theft.

https://en.wikipedia.org/wiki/Identity_theft

That link is salutary reading.

So they can empty your bank accounts, make purchases in your name, buy cars (etc) and take out loans and overdrafts pretending to be you. They will brazenly use the telephone masquerading as you and even present themselves in person (not to you of course).

Beware who has your details capable of being used like this, your nearest and dearest (especially the elderly) and your employees can be vulnerable innocent targets for giving away your identity data. There is no substitute for training, but having it taken seriously can be a challenge.

What is the first thing banks ask for? Date of Birth. What does everyone disclose to Facebook and others? Date of Birth. And so on.

Contractors have the dubious privilege of having statute law aimed directly at them in an attempt to reclassify them as employees and thus to charge pay as you earn (p.a.y.e.) tax and nic (employee AND employer) on what they see as their sales turnover.

HMRC’s general view is 100% of contractors should be treated as employees. They may claim differently, but their actions say otherwise.

As a very rough rule of thumb I have always used 100% as an instant estimate of how much tax/nic that will involve. So if your sales are £100,000 then your tax bill on that will be a further £100,000. So we are saying you need £200,000 to have £100,000 left after taxes. Regardless of exactly how accurate this is, the amounts involved can be enough to cause serious financial difficulty and if replicated in to the past for say 4 years in this case that is a £400,000 tax bill.

This deadly “method” is what is called “grossing up” where the money you have received is treated as your “net pay” and then your gross pay is worked backwards up to what it needs to be to generate these net pay amounts. This practice is as old as the hills and was not invented for contractors.

This is us:

https://en.wikipedia.org/wiki/Democracy

and we have an unwritten constitution in which we define the balancing of power as between:

Elected Parliament creates our laws

The police enforce those laws

The Judges decide what parliament meant and rule on police action.

HMRC are an enforcement arm like the police and therefore are also subject to the Judiciary’s rulings (as we all are) . HMRC are NOT all three arms in one, contrary to the way they often apparently behave; note it is established in law (House of Lords) that their guidance CANNOT be relied upon whereas Statute Law can be.

Sometimes HMRC will say : “this has the force of law”: all that means is they are quoting from a Statute.

Where HMRC find criminal law has been broken then they can engage the Police and others, but this has then become a police action and is as ever always subject to what our judges have to say about the matter.

HMRC did? No. Parliament did. However, these laws are put forth by the Treasury who are guided by and listen to HMRC. There is a “consultation” process to allow the public including professions to have their say. However, it seems to me this is not at all the same as the “ear of government” owned by HMRC. When Parliament clearly gets it wrong HMRC still continue to chase the maximum amount of tax, presumably because of pressure to collect as much tax as possible. Regrettably the iniquities caused by bad law seem to be seen as mere collateral damage and not worthy of rectification. This IS a problem with rule by the majority when a minority is opressed, especially when the minority are not poor. The more so when this oppression is to the advantage of HMRC’s statistics.

There is clearly a problem with one of the oldest tax problems in the book, which originally was known as the “Friday Monday Man”. This is where an employee leaves work on Friday and returns on Monday to exactly the same job, but working via his new Limited Company. There was law and case law in place to manage this. However, when it became apparent that agency workers were claiming to be self employed, instead of attacking these claims, HMRC persuaded politicians (who frankly had no idea about such tax matters) to change the law to enforce the operation of p.a.y.e. by agencies on workers working through them. I am sure it sounded like common sense.

However, what they did was to give birth to “contracting”. Those workers simply offered their services via Ltd companies. HMRC at the time were not concerned because to extract money from a company can only be done via salary, dividends or loan and they were satisfied this was not a “threat to the treasury”.

How wrong that was. I can never remember which year this was, but in the 1990s, so ancient history to many.

What happened then was half a dozen huge employment agencies (note that word “employment”) started putting hundreds of thousands of (typically) domestic, health and other previously “temp” workers through limited companies. Apparently none of the tax benefits were being passed on to these workers and were being retained by these agencies. It seems clear these (legal) business methods were an abuse of the law, even if legal. Parliament very quickly wrote and enacted a law to outlaw the abuse. It was, and still is, called the “Managed Service Company” (MSC) law. It had a 14 day deadline and all the agencies exited working in those ways within the 14 days, issuing press releases about how they were offering excellent services to these workers as alternatives. Such is “P.R.”.

So that was HMRC identifying and calling on parliament to avert a threat to the treasury, sucessfully. Sounds good to me.

Ironically HMRC has now more recently used this law against businesses that are not engaged in a “threat to the treasury” and against workers who are receiving the benefits of “contractor” type working. As such I view this as the reverse of the preceding action where it is now HMRC engaged in an abuse of the will of parliament, which was to avert the threat to the treasury, not to give HMRC a very blunt weapon to destroy businesses and lives. I recall one case against a firm of accountants where there were only three contractors. Three? The MSC law was to attack cases of hundreds of thousands of workers, not just three.

The problem here is the vagueness of the law. It was written very quickly for immediate effect and never later polished for precision. As I have said above, getting iniquities fixed takes years and HMRC are not interested in having their wings clipped to achieve fairness involving moves towards the right amount of tax rather than the maximum regardless of equity.

Of course the underlying problem is the legal minds outside HMRC are more clever than those within - if these are the same minds then when inside HMRC they note how they can work around what they have implemented when later working on the outside.

That’s the heart of the matter.

Indeed one can see many “contractors” are in reality are “employees”. Remember the temp agency workers claiming to be self employed? And Remember “Friday Monday Man”. “Temps” clearly are employees. So is “Friday Monday Woman”.

However, they are not everybody.

The courts (HMRC) have derived the idea that to not be an employee one must be “in business on one’s own account”. Here is one Barrister view:

https://www.devereuxchambers.co.uk/resources/articles/view/business-on-own-account

What I find endlessly useful are the judgements the judges hand down to us. They were very interesting reading and often provide us with what amount to sets of instructions about how to do and how not to do things. That said, to identify them can be time consuming and then to read these very long judgements is even more time consuming so most of us have to rely on the summaries written by other professionals or journalists. Both can be interesting and indeed direct attention for further reading - immediate reliance on them is not wise and to be fair they always say to get professional advice.

Be aware that professionals writing for the public are essentially writing to market their services and journalists are writing in ways to attract attention rather than to communicate the law. Nothing wrong with either of these, we should just be aware.

It’s worth noting that Barristers are extremely clever people who work in infinite detail to persuade judges to their client’s view. So the judges have to be even more clever.

Our judges on the other hand are writing directly to us for our benefit in understanding the will of parliament; that’s why their judgments are far far longer than published articles in the general or even specialised press. Reading these takes many hours.

Q1 The principle in law appears to be “the instantaneous communication advantage”.

Here is one view

https://www.grin.com/document/302312

and another written by a law student:

Quoted from here https://www.lawteacher.net/free-law-essays/contract-law/contractual-acceptance-by-email.php

Instantaneous communication

It is notable, that the postal rule is often not active when it comes to instantaneous communication (Beale, 2014: 2-049). 

For instance, telephone and telex communication is not covered (Entores Ltd v Miles Far East Corp. [1955] 2 Q.B. 327; Brinkibon Ltd v Stahag Stahl und Stahlwarengesellschaft mbH [1983] 2 A.C. 34; N.V. Stoomv Maats “De Maas” v Nippon Yusen Kaisha (The Pendrecht) [1980] 2 Lloyd’s Rep. 56, 66; Gill & Duffus Landauer Ltd v London Export Corp GmbH [1982] 2 Lloyd’s Rep. 627).

The reason why the postal rule is not, generally, applied in cases with instantaneous forms of communication is that in such situations the offeree normally knows straight away that delivery has failed and can, therefore, make alternative arrangements to ensure that his acceptance is properly communicated (Entores Ltd v Miles Far East Corp.; Brinkibon Ltd v Stahag Stahl und Stahlwarengesellschaft mbH; Beale, 2014: 2-050).

This is contrasted to the situation, in which an offeree who uses post may find himself, since he may be unaware of the failure of delivery until it is too late to accept; before the offer expires or is revoked (Beale, 2014: 2-050). [Ed

The way “fax communication” is approached, could shed some light on how email should be approached. The sender of a fax knows immediately whether the fax has been received, which could place faxes in the instant communications bracket (Beale, 2014: 2-051). Indeed, it has been held that faxes are “instantaneous communication” (JSC Zestafoni Nikoladze Ferroalloy Plant v Ronly Holdings Ltd [2004] EWHC 245 (Comm), [2004] 2 Lloyd’s Rep. 335) and that if the sender knew that his fax was not delivered in full or at all, the mere sending of a fax could not amount to acceptance (JSC Zestafoni Nikoladze Ferroalloy Plant v Ronly Holdings Ltd). While a fax might appear to be delivered properly, it may have arrived in an illegible format; therefore, it has been argued that, in such cases a fax may constitute valid acceptance (as the instantaneous communication advantage is nullified) (Beale, 2014: 2-051). It has been argued that the same logic should apply to email acceptance (Beale, 2014: 2-051). Q1

Q1 Whether or not the Postal rule should apply to email communication arguably turns on whether or not it is qualitatively instantaneous, that is to say, whether it displays the characteristic of instantaneous communication which would make it unfair for the Postal rule to apply (such as the ability to instantly know if receipt has occurred).

On the point of whether e-mail is instantaneous, it has been said that it is

‘almost’ instantaneous (Counts and Martin, 1996: 1086),

‘more or less’ instantaneous (Carter, 2002: 03-360 and 03-390),

‘nearly’ instantaneous (Burnstein, 1996: 76),

‘virtually’ instantaneous (Carter and Harland, 2007: 232) and

‘absolutely’ instantaneous (Norman, 1996: 86).  

(Ed The law(yers) tend to not be very “tech” - though one wonders if this is when it suits their argument. Ever since the dawn of the internet the modus operandi have always been “never assume anything has arrived”, because there are endless technical reasons why it may not have. Modern system defences involve a vast array of checks which if failed, will cause the message to not be delivered and this is in addition to all the reasons a system simply fails to work as designed. There is no guarantee a “bounce message” will be sent.)

Furthermore, the high court - see next Q1

Q1 High Court held; the Postal rule should not apply to email communication since such communication was ‘instantaneous’

(David Baxter Edward Thomas and Peter Sandford Gander v BPE Solicitors (a firm) [2010] EWHC 306 (Ch)). Q1

Q1 However, some commentators (Ed such as me) point out that “instantaneousness” may not be the correct way to approach the issue(Mik, 2009: 17). It has been argued, the way some commentators approach “instantaneousness” is linguistically illogical since “instantaneous” should by definition mean no delay whatsoever; therefore qualifications such as “almost” or “nearly” allow for the possibility of delay, which means that “instantaneousness” is the wrong term to use (Mik, 2009: 16-18). 

This is because if one begins to consider, how much delay would render a communication non- instantaneous, then this becomes an issue of control (over the communication on the part of the sender/ offeree ) and not one of “instantaneousness” (Mik, 2009: 17). (Ed I agree)

If control is the operative factor, (Ed that is a very perspicacious point) then the Postal rule should apply, in situations where the sender loses control over the communication (cannot confirm successful delivery) at the point of sending (Mik, 2009: 18).

In terms of emails, it has been argued that email senders can determine whether delivery was successful; however, analysis of common email protocols has demonstrated a number of flaws on this argument. (Ed I’ll say!)

For instance, notifications of failed delivery (Ed i.e. a bounce message) are not automatic and depend on the sending system being set up to request them and the receiving system being set up to provide them (Mik, 2009: 19).  Further, there are noted delays in the actual issuance of failed delivery messages (Mik, 2009: 19).

Moreover, even if one focuses on “instantaneousness” rather than control, email communication could hardly be called instantaneous, since it features many steps and relays (often across the globe) and there is often a notable delay between sending and receipt (Christensen, 2001) (Ed not to mention that email sending “SMTP” servers often do not send immediately). Q1

Q1 In line with this (Ed listed in the above ) reasoning and in stark contrast to the decision of the English High Court in Thomas v BPE Solicitors, Rajah JC of the Singapore High Court  held in Chwee Kin Keong v Digilandmall.com Pte Ltd, [2004] 2 SLR 594; [2004] SGHC 71, that:

“… unlike a fax or a telephone call, it is not instantaneous. Emails are processed through servers, routers and internet service providers. Different protocols may result in messages arriving in an incomprehensible form. Arrival can also be immaterial unless a recipient accesses the email, but in this respect email does not really differ from mail that has not been opened.”  (Digilandmall:97). Q1

Q1 It is submitted that the position of the Singapore High Court is much more in tune with technical realities than the English High Court. (Ed and I heartily concur)

Please note that all this section’s “Instant transmission further research” content to this point comes from here https://www.lawteacher.net/free-law-essays/contract-law/contractual-acceptance-by-email.php Q1

These DO indicate when an im message has been delivered, although how reliable that is for the purpose of court decisions I think remains to be seen. I might observe that like fax machines (most) im systems will not function without a mobile telephone number. That seems to make them akin to fax machines, that require a receiving telephone number with a fax machine attached and ready and wllling to answer 24/7. Given the absence of reliability of internet data connections, regardless of the particular im protocol, it seems to me any control over receipt is suspect. In fact I begin to wonder if any internet system that relies on technology in place of human beings is losing any reliable control over delivery. So if delivery is not “instantaneous” the postal rule must apply. Now if that were true, it gives new meaning to checking one’s messages when contract offer and acceptances are in play.

Back in the 1980s I remember a fax coming in giving 8 minutes notice of an overdraft being payable on that demand. Back then we had “telegraphic transfer” and so the settlement was made in time. How about if it was delivered by “instant message”? That thought chills me because fax machines are/were managed by everyone present in the location of the machine. Instant messages are managed solely by the owner (holder) of the mobile device (could be a digital pad (e.g. iPad) not a phone as such) who may or may not be at work that day or week etc. Fax machines are/were not mobile and not personal, in the same way a physical mail box is neither mobile nor personal (discuss).

Ok so a fax machine could be off or out of order, but then the sender is/was immediately informed by the fax send failure. In that case we the prospective sender would then often, using our wired telephone, call the recipient to say there was something wrong with their fax machine and typically they would fix it immediately. So fax is/was fixed location device direct to fixed location device, with immediate feedback. None of today’s devices are like that. They could be, but we would not know, and in an case they most probably are not. These days even fax send and receive can be using virtual fax machines that don’t exist in real life.

It seems technology cannot beat human delivery, hence process serving.