All posts by Arfan Khan

ARFAN KHAN SUCCESSFUL IN APPEAL AGAINST STRIKE OUT ORDER UNDER RULE 37 OF THE EMPLOYMENT TRIBUNAL RULES 2013

EAT Appeal: Strike out, Employment Appeal Tribunal, Race Discrimination, Sexual Harassment, Victimisation, , , ,

ARFAN KHAN SUCCESSFUL IN APPEAL AGAINST STRIKE OUT ORDER UNDER RULE 37 OF THE EMPLOYMENT TRIBUNAL RULES 2013

Arfan Khan represented the successful Appellant on appeal, instructed by Chipatiso Associates LLP at short notice, having not appeared at first instance. HHJ Shanks granted an oral hearing on the grounds of appeal, which were prepared by the previous advocate.

The appeal challenged the Employment Tribunal’s decision to strike out claims of race discrimination, sex discrimination, victimisation, and harassment. The Employment Tribunal had dismissed these claims under Rule 37 of the Employment Tribunals Rules 2013 (“the ET Rules”), concluding that the Appellant’s former representative’s conduct was scandalous, vexatious, or unreasonable. The Employment Tribunal found that the former representative treated the case as a personal crusade, failed to act in the Appellant’s best interest, and pursued his own agenda against the Respondent.

In an extempore judgment, the Employment Appeal Tribunal allowed the appeal and provided guidance on the interpretation and application of Rule 37 of the ET Rules 2013. The Employment Appeal Tribunal remitted the case back to the Employment Tribunal before a different judge.

ARFAN KHAN LEADS IMPORTANT APPEAL CONCERNING WHETHER A BANKRUPTCY ORDER IS A NULLITY

Bankruptcy appeal, Commercial and Chancery, Court of Appeal decision, GUIDANCE APPEAL, , , , , ,

ARFAN KHAN LEADS IMPORTANT APPEAL CONCERNING WHETHER A BANKRUPTCY ORDER IS A NULLITY

Arfan Khan led Mr. Wojciech Nicholas Andrew Zalewski in an appeal, instructed by Ardens Solicitors.

The appeal was heard by Mr. Justice Zacaroli, who considered whether a bankruptcy order was a nullity under the Breathing Space Moratorium and Mental Health Crisis Moratorium England and Wales Regulations 2020 (the Regulations).

Mr. Justice Zacaroli (now Lord Justice Zacaroli) granted permission to appeal on a point of general public importance. However, he dismissed the appeal, holding that a bankruptcy order was not a nullity under the Regulations. In doing so, Mr Justice Zacaroli provided significant guidance on the scope and interpretation of the Regulations and section 282(1) of the Insolvency Act 1986.

The decision has far-reaching implications for debtors who have been presented with a bankruptcy petition but have been granted a statutory moratorium.

The judgment can be accessed through the following link.

Carter v Davies Judgment Zacaroli J

LORD JUSTICE UNDERHILL GIVES GUIDANCE ON STATELESSNESS AND IRREMOVABILITY

Deportation order, Revocation, Statelessness, ,

LORD JUSTICE UNDERHILL GIVES GUIDANCE ON STATELESSNESS AND IRREMOVABILITY

Arfan Khan represented the Applicant at an oral hearing in the Court of Appeal, during which Lord Justice Underhill (the Vice President of the Court of Appeal) provided valuable guidance on the Secretary of State’s policy concerning statelessness, and the approach to revoking a deportation order.

The Applicant, acting as a litigant in person, commenced a judicial review against a decision concerning his alleged statelessness, and irremovability from the UK. Following the Upper Tribunal’s determination that he was Nigerian, his appeal was dismissed. Thereafter, he submitted a new application for statelessness.

In a paragraph 353 letter dated 19 April 2022, drafted by him as a litigant in person, he made various representations said to amount to a fresh claim. This letter invited the SSHD to take a “practical and holistic view”, and alleged that removal was too remote.

By a decision letter dated 10 October 2022, the SSHD decided that he was “not stateless” due to the Upper Tribunal’s findings that he was Nigerian. In that letter, he decided that until the Applicant provides true details and evidence to the Nigerian authorities, they are not likely to provide him with a Nigerian Travel document.

The Applicant sought judicial review. Permission was refused by Judge Kebede. The Applicant appealed to the CoA alleging, amongst other grounds, that it was not sufficiently reasoned. Lord Justice Underhill directed an oral hearing to determine the statelessness and/or irremovability grounds drafted by him as a litigant in person.

The Appellant argued that it was irrational of the Secretary of State not to recognise that the applicant had an arguable fresh claim to be stateless, and that it was irrational of him not to recognise that the applicant had an arguable fresh claim to be in practice irremovable (10). He contended that he had provided disclosure to the Nigerian High Commission in an email to which the Respondent was copied, but the Respondent had done nothing (13-14). This was so despite the Respondent having stated in March 2020 that he was assembling a submission to the Nigerian High Commission (19).

Lord Justice Underhill refused permission on the basis that the Respondent had not made a stateless determination that had been challenged in the rule 353 letter. His Lordship held that, in any event, the decision was not irrational, though he accepted that irremovability had been obliquely raised by the Appellant in the rule 353 letter.

Refusing permission, his Lordship provided a ruling that is of wider importance in the following respects at the oral hearing:

1. His Lordship gave guidance on the nature and scope of the Secretary of State’s policy on statelessness, holding that the policy does not require the Secretary of State to take action, unless the applicant has provided a true and good faith account to the Nigerian authorities (15).

2. If a person facing deportation refuses to cooperate with their home country’s authorities, the Secretary of State may need to step in and personally intervene to secure emergency travel documents in order to proceed with deportation (18). If successful, the deportation can go ahead as planned. However, if unsuccessful, the Secretary may need to consider rescinding the deportation order and providing some form of relief (18).

Lord Justice Underhill held that it was inappropriate to dismiss the application for permission to appeal as totally without merit, despite previous certifications indicating otherwise, as the decision under appeal was not as full as it might have been. His Lordship also held that, if the Secretary of State fails to secure travel documents from the Nigerian High Commission for the applicant, it would be unjust to restrict the applicant from initiating proceedings.

The judgment can be accessed through the following link:

Ogilvy (aka Alakija), R (On the Application Of) v Secretary of State for the Home Department [2024] EWCA Civ 315 (29 February 2024) (bailii.org)

Judgment PDF

Arfan Khan’s article entitled “Reassessing Proportionality: Implied Limitations and Judicial Review under Section 6 of the British Nationality Act 1981” published by the Oxford University Press

Appeals, Judicial Review - Proportionality,

Arfan Khan’s article entitled “Reassessing Proportionality: Implied Limitations and Judicial Review under Section 6 of the British Nationality Act 1981” published by the Oxford University Press

Arfan Khan’s article, entitled “Reassessing Proportionality: Implied Limitations and Judicial Review Under Section 6 of the British Nationality Act 1981“, has been published in the Statute Law Review through the Oxford University Press. This article was accepted for publication on 23/1/2024 following a blind peer review. Arfan is grateful for the blind peer review process that resulted in the acceptance of the article on merit, and is grateful to the Statute Law Review and the Oxford University Press for providing the platform for its publication. The article can be accessed through the following link which contains an open abstract of the thesis:  

https://academic.oup.com/slr/article-abstract/45/1/hmae005/7613989?redirectedFrom=fulltext 

 

High Court refuses CPR Part 18 Application for further information and interrogatories in conspiracy claim involving alleged deceit

Part 18 application - Chancery Commercial, , , ,
High Court refuses CPR Part 18 Application for further information and interrogatories in conspiracy claim involving alleged deceit

Arfan Khan successfully acted for the Claimant instructed by Simon Boschat and Raj Pabla of Hill Dickinson LLP against the Defendant who was represented by King’s Counsel and Junior Counsel.

The Claimant seeks damages from the Defendant due to losses arising from a collapsed scheme allegedly aimed at deceitfully evading affordable housing obligations required by section 106 of the Town and Country Planning Act 1990.

The Claimant alleges deceit and an unlawful conspiracy, contending she was misled into buying a flat at open market value under false representation that it was not subject to affordable housing restrictions. The Claimant had to sell the flat she purchased at an affordable housing value and incurred substantial losses. The conspiracy claim involves parties allegedly colluding to harm unsuspecting buyers, including the Claimant.

The Defendant’s previous attempts for summary judgment or striking out the claim were rejected in both the first instance and Court of Appeal judgments, with permission to appeal further being refused by the Supreme Court.

The Defendant subsequently applied to the Court to compel the Claimant to fully respond to earlier requests for information made in July 2020. This information was alleged to be crucial for the Defendant to understand the fraud-based case. Additionally, the Defendant sought an order to strike out the Particulars of Claim if the Claimant failed to comply with the request for information.

In his Judgment, Deputy Master Linwood referred to the relevant legal principles and arguments in detail. He refused the Defendant’s applications in their entirety, in summary due to the following reasons advanced on behalf of the Claimant:

(1). The requests were not strictly necessary and proportionate to enable the Defendant to prepare his own case or understand the case he had to meet on the pleading which could not be said to be inadequately pleaded.

(2). In any event, the Court would not exercise its discretion in the context of the overall case management of the claim, bearing in mind the benefit, cost and financial resources and the overriding objective. In particular, the Deputy Master highlighted the Defendant’s previous conduct and commented that there appears to be some force in the Claimant’s submission that the Defendant was pursuing a strategy to obstruct and delay the proceedings to place the Claimant under pressure to discontinue or settle on disadvantageous terms.

Deputy Master Linwood dismissed a separate argument on behalf of the Claimant alleging an abuse of process.

The judgment is reported as Raja v McMillan [2023] EWHC 1110 (Ch).

It can be accessed the following links:

https://caselaw.nationalarchives.gov.uk/ewhc/ch/2023/1110

Raja v McMillan

High Court dismisses the cross appeal of the Solicitors Regulation Authority seeking suspension or strike off of a solicitor

Appeal by solicitor, Cross appeal by SRA, Public Law - Court of Appeal, Solicitors disciplinary appeal, Solicitors Regulation Authority, , ,

High Court dismisses the cross appeal of the Solicitors Regulation Authority seeking suspension or strike off of a solicitor

Arfan Khan successfully appeared for a solicitor against a cross appeal in which the Solicitors Regulation Authority were legally represented by leading and junior counsel.

The SRA sought a suspension or strike off following findings of the Solicitors Disciplinary Tribunal that the solicitor had behaved inappropriately towards an applicant who had applied for the position of paralegal. It imposed a fine of £20,000.

In a detailed extempore judgment, Mr Justice Jay dismissed the cross appeal by the SRA, holding that the sanction of a fine could not be reversed. The judge also dismissed the solicitors appeal against liability and sanction.

The judge assessed the Appellant’s costs of the cross appeal and made a consequential cost order.

Arfan Khan did not appear in the SDT proceedings below.

 

HIGH COURT REVERSES TRIAL JUDGE’S DECISION TO REFUSE ADJOURNMENT ON COVID GROUNDS

Appeal, Commercial and Chancery, ,

HIGH COURT REVERSES TRIAL JUDGE’S DECISION TO REFUSE ADJOURNMENT ON COVID GROUNDS

Arfan Khan appeared successfully in a High Court appeal, which reversed the trial judge’s decision to refuse adjournment of the trial where the Appellant was suffering from Covid symptoms.

The Claimant (Respondent) had brought a claim against the Defendant (Appellant) for a declaration that an agreement dated 27 November 2018 was binding pursuant to which the Appellant was required to pay a sum of money to the Respondent.

The trial was listed to start on 6 December 2021. HHJ Lethem KC refused the Appellant’s application for adjournment and proceeded with the trial. He granted the declaratory relief sought and gave judgment for the Respondent.

At an oral renewed permission to appeal hearing, Mrs Justice Steyn granted the Appellant permission to appeal on three renewed grounds of appeal, namely:

  1. The judge was wrong to hold that the 2018 agreement was binding;
  2. The judge applied the wrong test in refusing to adjourn and/or was wrong not to adjourn for a short period to enable a remote hearing to take place; and
  3. The judge was wrong to proceed on the basis that there was an arbitration agreement or whether it was a matter of semantics whether there was such an agreement.

At the appeal hearing, the judge considered as the first issue whether the refusal to adjourn the trial was wrong. If so, it was common ground that the judgment could not stand.

The Appellant had applied to adjourn for three reasons (i) he required additional time to prepare following a late change in legal representatives; (ii) he suffered from depression and anxiety and (iii) he had symptoms of COVID.

The Appellant disputed the suggestion that his symptoms were not genuine and had referred to an email where it stated that he had booked a PCR test, the results of which would arrive in two days, and was required to self-isolate. He could not leave his home save to post the test kit. His son had described him as suffering from shortness of breath and a lot of coughing.

The trial judge refused the adjournment, not on the basis that he did not have COVID symptoms, but because he thought that the Defendant should have taken the lateral flow test to determine whether he had COVID.

Mr Justice Chamberlain held that, if the application to adjourn had been pursued purely because of the late change of representatives and because of the mental health issues, the judge’s analysis would have been exemplary. However, as to the COVID issue, Mr Justice Chamberlain held that the judge considered the evidence with care, but was wrong in refusing to adjourn the trial and enquire about a remote hearing because:

  1. The government guidance was that those who had symptoms of COVID 19, which included shortness of breath and coughing, should take a PCR test. The lateral flow test was for those who were asymptomatic. On the guidance, the Appellant had to self-isolate.
  2. The judge should have made enquiries to ascertain whether the Appellant required a remote hearing bearing in mind that his son who applied for the adjournment was not a lawyer and had not requested a remote hearing. Whilst the decision to adjourn was a case management decision, the decision to proceed without enquiring about a remote hearing fell outside the range of responses open to the trial judge.

As a result, the Mr Justice Chamberlain ordered a retrial.

It was not necessary to reach a conclusion on Grounds 1 and 3 which raised matters for the retrial.

ARFAN KHAN acted for the Appellant at the appeal hearing, and at the renewed oral permission to appeal hearing instructed by gunnercooke LLP.

The judgment can be accessed here: Miah v Ahmed [2023] EWHC 1742 (KB) (11 July 2023) (bailii.org)

ahmed v miah_final

Court of Appeal clarifies the legal test for appeal against a contempt of court sentence in a family case

Court of Appeal, ,

The Court of Appeal, Lord Justice Baker, with whom Lady Justice Andrews, and Lord Justice Nugee agreed, clarified the legal test for an appeal against a contempt of court sentence in a family case.

The appeal involved an immediate custodial sentence of six months for contempt of Court. The sentence was imposed following multiple alleged breaches of Court orders intended to secure the return of children from Iran to the UK, including one alleged breach where the Appellant expressed an intent not to comply with the Court order.

On the Respondent’s case, she visited the Appellant in Iran as he was spending more time in Iran following the death of his mother. During her visit, the Appellant sought to register his marriage with the Respondent in Iran. Fearing the consequences for her and the children, she decided to leave Iran with the children. On the Appellant’s case, she was required to obtain the Appellant’s consent before she could leave with the children. As she failed to obtain the same, she was apprehended attempting to leave Iran with the children without the Appellant’s consent: she then abandoned the children at Tehran Airport, so that the Appellant was forced to take custody of them by default.

Upon her return to the UK, the Respondent commenced proceedings for the return of the children to the UK. The children were made wards of the Court. A series of orders were made intended to effect the return of the children to the UK. Amongst other orders, the Court orders made provision for the Appellant to sign a notarised agreement consenting to the return of the children to the UK for a Court hearing. It was alleged that the Appellant failed to comply and one occasion indicated that he had no intention of complying with the Court order.

The Respondent commenced contempt of Court proceedings for various breaches of the Court orders. Mr Justice MacDonald found the breaches proven and imposed a six month custodial sentence for the relevant breaches.

On appeal, the Court of Appeal considered the relevant principles for reversing a contempt of court sanction in family proceedings, and determined whether the reasoning of their Lordships in the civil case of Lovett & Anor v Wigon Borough Council [2022] EWCA Civ 1631 applied to contempt of court in family proceedings. In that case, Birss LJ, with whom Stuart-Smith LJ and Edis LJ agreed, set out in a series of cases detailed guidance about the sentencing for breaches of orders under Part 1 of the Anti-Social Behaviour, Crime and Policing Act 2014. At paragraph 47 in Lovett, their Lordships condensed complex sentencing guidelines to three levels of culpability, namely:

“(A) high culpability – very serious breach or persistent serious breaches, (B) deliberate breach falling between (A) and (C); and (C) lower culpability – minor breach or breaches”.

At [56], their Lordships held:

“It cannot be over emphasised that the task of sentencing a defendant for breach of orders in contempt of court is a multifactorial exercise of judgment based on the particular facts and circumstances of the case before the judge. Any sentence must be just and proportionate.”

The Court of Appeal applied this reasoning and dismissed the appeal holding that the judge carried out a “multifactorial exercise of judgment based on the particular facts and the circumstances” and the sentence he passed was “just and proportionate”.

Arfan Khan acted for the Appellant instructed by CV Brooks Solicitors.

The judgment can be accessed here: https://caselaw.nationalarchives.gov.uk/ewca/civ/2023/532

Allami v Fakher [2023] EWCA Civ 532

Claimant seeks permission to appeal against the decision of Mostyn J in a naturalisation case

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Claimant seeks permission to appeal against the decision of Mostyn J in a naturalisation case

The Claimant was an indirect participant in war crimes during the civil war in Sierra Leone. He alleged that he was forced to train soldiers under or a “do or die” option in Sierra Leone. The soldiers in turn participated in war crimes. He was also a member of the AFRC, and an associate of Johny Paul Koroma, the former President of Sierra Leone, who was indicted, but never convicted of war crimes. The Claimant was granted asylum on the basis that there was a reasonable likelihood that he would face persecution if returned to Sierra Leone. He was granted indefinite leave to remain in the UK.

The Claimant applied for naturalisation under s.6 of the British Nationality Act 1981 in 2011, and in 2019. His second application was refused on 14/4/2021 by the Secretary of State for the Home Department (“the SSHD”). He commenced judicial review against that decision on the basis that there was a failure to allow an opportunity to address relevant matters of good character. The proceedings were withdrawn by consent which directed the SSHD to reconsider the decision. On 8/4/2022, the SSHD refused the Claimant’s application for naturalisation again.

The Claimant applied for judicial review on the basis that there was an error of law in that the decision maker did not consider the following in the exercise of her discretion and referred to in the published policy: (a) mitigation, duress and other defences, including the superior orders defence; (b) the degree to which the Claimant had distanced himself from his past membership or associations in Sierra Leone; and (c) the degree to which he was personally and directly involved in war crimes in Sierra Leone.

Permission for judicial review was granted by Mr Simon Tinkler (sitting as a Deputy High Court Judge) on all these grounds following a contested permission hearing at which the SSHD was represented by counsel.

The Claimant contended that the lawfulness of a decision under s.6 could be reviewed through a common law proportionality test following decisions of the UKSC.

Mostyn J appears to have accepted that the common law has proceeded based on an intersection between proportionality and reasonableness. The concept of disproportionate, and therefore, unlawful treatment, is easy to understand where the state is removing or limiting a right of the subject. He appears to have accepted that it is perfectly logical for the Claimant to argue that the measure of depriving him of a passport because of things he did nearly a quarter of a century ago is disproportionate.

However, Mr Justice Mostyn rejected the Claimant’s submission that the lawfulness of a decision under s.6 of the British Nationality Act 1981 could be reviewed with reference to a common law proportionality test. In holding so, he appears to have declined to follow the reasoning of the UKSC decisions in Pham [2015] 1 WLR 1591, Kennedy [2015] 1 AC 455, and Bank Mellet [2014] AC 700. The judge appears to have held that applying a proportionality analysis adopts a merit-based approach which steps into the shoes of the decision maker applying the decision of Mr Justice Jay in Begum v SSHD [2023] Appeal No SC/163/2019, and the UKSC decision in R (Keyu) v SSHD [2015] UKSC 69 (referred to in Begum).

Mostyn J does not appear to have ruled on the Claimant’s submission that the case of Begum is distinguishable, or wrongly decided considering higher authority. Nor did he make a ruling on other material submissions which undermine his reasoning.

The Claimant intends to seek permission to appeal from the Court of Appeal against the decision of Mostyn J.

Arfan Khan represented the Claimant and is instructed on appeal by Graceland Solicitors.

The judgment of Mostyn J can be accessed through the following link:

Mr Justice Mostyn – approved Judgment – Sandy v SSHD – CO-1813-2022 – 27 March 2023 Rev 1

 

High Court delivers judgment in misrepresentation and breach of contract appeal

Uncategorized

Mrs Justice Hill delivered judgment on appeal involving a misrepresentation and breach of contract claim involving facial rejuvenation services. Permission to appeal was granted by Soole J. The judge dismissed the appeal and refused to admit fresh evidence.

The judgment can be accessed here.

Arfan Khan appeared for the Appellant following the grant of permission to appeal and did not appear below.