All posts by Arfan Khan

COURT OF APPEAL ALLOWS ASPECT OF APPEAL IN COMMITAL FOR CONTEMPT OF COURT CASE

Commercial & Public Law, Committal, Property litigation

Isaac Smith v Network Holmes Ltd [2022] EWCA Civ 1631

The Court of Appeal (Lord Justice Stuart Smith, Lord Justice Birss and Lord Justice Edis) gave guidance when considering the correctness of a decision to commit the Appellant to prison for contempt of Court.

The Appellant, Isaac Smith, is physically disabled. The Equality Act 2010 Considerations & Proportionality Assessment Form dated June 2021 noted that he spent most of his time in the living room due to his disability and played music to manage the quality of his life. Following complaints from neighbours, including an allegation of a threat of violence, the Court granted an injunction to his landlord, Network Homes Ltd, pursuant to the Anti-Social Behaviour Crime and Policing Act 2014. Network Homes Ltd sought an order for committal based on various alleged breaches of the injunction. The Deputy District Judge found 9 of the 10 breaches of the injunction proved and sentenced the Appellant to a 12-week custodial sentence suspended for a period of 12 months.

The Court of Appeal allowed the appeal on this aspect of the appeal by reducing the sentence to a one-month custodial sentence suspended for the same period. The Court of Appeal proceeded to provide the following guidance:

1.The principle of open justice serves to emphasise that judgments involving committal for contempt of Court must be transcribed and published. The judge giving the judgment also bears responsibility to ensure that the Court staff are aware of the judgment after it is published, so that they can take the appropriate steps. A failure in the audio system is not a good reason for at least publishing a note of the sentence. The Court held that there was a serious irregularity in that the Deputy District Judge’s judgment had not been transcribed and placed on the judiciary website at the proper time, contrary to CPR r81.8(8). However, the Court held that this was not sufficient to allow the appeal.

2.In the absence of a possession claim under Part 55 (it being accepted that there was no possession proceedings before the Deputy District Judge), the contempt jurisdiction did not entail consideration of a mandatory ground for possession under s.84A of the Housing Act 1985 as an alternative to committal. An order for possession is not another penalty (along with a custodial sentence or a fine) which the Court can consider in the context of sentencing for contempt on an application for committal under Part 81. It is a remedy available under the Housing Act. Given that there was no application for possession before the Deputy District Judge, he could not be faulted for not taking it into account.

3.There was no dispute that under s.16 of LASPO 2012, the Court of Appeal, as the relevant authority, can make a representation order covering the appeal: Devon County Council v Kirk [2017] 4 WLR 36 at paragraph 52 and Re O (Committal): Legal Representation [2019] 4 WLR 140at para 2 and 4.

Arfan Khan appeared for Mr Isaac Smith and did not appear below. The judgment can be accessed here: https://www.bailii.org/ew/cases/EWCA/Civ/2022/1631.html

 

Arfan Khan represents the Bar Council in a speech to London South Bank University Students on how to qualify for the bar

Bar Council - LSBU speech
Arfan Khan represents the Bar Council in a speech to London South Bank University Students on how to qualify for the bar

The speech was followed by a question-and-answer session with questions from some thoughtful and promising students.

The full speech is available to read here.

 

 

The 10,000 Black Interns Bar Council Initiative

Bar Council Black Interns Initiative

42BR hosted an intern through the 10,000 Black Interns Initiative

We are pleased to announce that we hosted an intern through the 10,000 Black Interns initiative run by the Bar Council.

During their time with us, our intern shadowed our barristers in Chambers. Alongside one of our pupils, she prepared and undertook two advocacy exercises. The advocacy exercises were prepared and judged by Arfan Khan and Katherine Archer. Our intern and pupil were provided with a recommended reading and viewing list on advocacy, which included lectures and articles on advocacy by Mark Littman QC, Lord Sumption QC, Lord Pannick QC, and Lady Justice Andrews.

The intern and pupil were inspired by the reading/viewing list and advocacy exercises, which they enjoyed. Both were provided with constructive feedback.

The intern was also provided with feedback on her CV and general interview skills.

We look forward to hosting more interns in the future.

For more information on the 10,000 Black Interns Initiative, click here.

The Court of Appeal upheld trial judge’s decision to order an account in millions

Court of Appeal - Gangat v Jassat,

The Court of Appeal upheld trial judge’s decision to order an account in millions

The Court of Appeal (Lord Justice Nugee, Lord Justice Stuart Smith, and Lord Justice Warnby) upheld the decision of Mr Eason Rajah QC ordering an account in millions against the Defendant for breach of fiduciary duties.

The Court of Appeal held that the judge referred to the facts with commendable clarity (§3). Disclosures to the South African Revenue Service revealed that approximately £40 or £65 million, comprising profits in a off book cash business, were secretly taken out of South Africa by the South African businessmen in breach of Exchange Control regulations and placed in Swiss accounts. This included the Claimants’ share of monies. Thereafter funds were distributed in agreed proportions. The Defendant used the Claimants’ share of the monies to purchase various properties in the UK.

The Court of Appeal held the overall issue was whether the Defendant was accountable to the Claimants (§45). That ultimately depended on the question whether the Defendant had control of property belonging to the Claimants. The Court of Appeal held that the judge succinctly identified this question in his judgment which depended upon whether, viewed objectively, the Claimants were entitled to expect him to administer that property for their benefit (§45). There was no requirement to establish a breach of fiduciary duty in order to establish a duty to account.

There can be no hard and fast rules regarding the impact of document suppression, which depended upon the evidence and issues (§44). If the Court can make secure findings of fact on the basis of other evidence, even after making due allowances for what might have been deliberately withheld, then it is entirely appropriate for it to do so. (§44). The Court of Appeal held that, even considering the fact of deliberate document suppression, the judge had benefit of seeing extensive cross examination of the Defendant on the documentary evidence and other matters, such that, even discounting the Claimants’ evidence, the judge had enough material emanating from the Defendant to reach the conclusion he did (§ 46-47).

The Court of Appeal held that it should be very wary of being too prescriptive as to how judge’s write their judgments (§42). This is particularly when it comes to a trial judge’s analysis of the evidence. The Court would be doing no-one favours if it started laying down rules requiring judges to spell out in detail why they have or have not accepted particular pieces of evidence, let alone what the significance might be of evidence that, for whatever reason, was not before the Court (§ 42). It is to be assumed that a judge knew how to perform judicial functions, and had taken the whole of the evidence into consideration, unless the contrary is established (§43).

The Claimants’ Amended Particulars of Claim was not, on a fair reading of the pleading, limited to two specific sums namely $4 million and $12 million, but included an allegation that, whatever else the position was, the Defendant was accountable to them among other things for the portfolio listed in the Richmond Lodge Document which he admitted holding for them, and there was undoubtedly evidence to support that case (§55-57). That was sufficient to entitle the judge to find that the Richmond Lodge Document was intended to be an account of what the Defendant was holding for the Claimants in 2009, and to conclude that he was accountable at least for what he there admitted holding. It was not necessary for the Judge to delve into the detail of precisely how the assets there listed had come to be acquired (§56). Nor was it necessary to show what transfer of monies funded the portfolio (§55). The judge had rejected other answers to the claim and the defence of illegality did not feature in the appeal (§52).

The circumstances in which the Richmond Lodge Document came to be produced embraced the question whether it was produced by the Defendant and intended to be an acknowledgment of what he was then holding; or whether it had been altered for personal use (§62). The Judge had to resolve that question and did so with considerable care (§ 62 & 17). The effect of the judge’s decision, that the Richmond Lodge document was an agreed statement of account, had the effect of rejecting the Claimants’ case that it was a partial account, and was not something which the Defendant could object to on appeal (§64).

The Court of Appeal dismissed the appeal with costs.

Arfan Khan acted for the successful Respondents on appeal and Claimants at trial.

The judgment can be access here:

https://www.bailii.org/ew/cases/EWCA/Civ/2022/604.html

The Employment Appeal Tribunal rules on the meaning of exceptional circumstances in rule 30A, procedural irregularity, and private life under Article 8 ECHR

Article 8 - private life, Exceptional Circumstances, Procedural irregularity, , , , ,

Arfan Khan led Alexander Rozycki from St Philips Chambers on appeal to the EAT before Mr Mathew Gullick QC (sitting as a Deputy High Court Judge). Arfan Khan has led in numerous reported cases of complexity, particularly at the appellate level, originally as a protege of the late Mark Littman QC, who was widely known as one of the leading advocates of the 20th Century.

There were two appeals in this case: appeal X and Y.

In appeal X, the issue was whether there was a procedural irregularity in the way in which the Employment Tribunal (“the ET”) had dealt with the Appellant’s application for reconsideration, and if so, whether the appeal should be allowed. The ET dismissed the employer’s application to strike out the Appellant’s claim. In the course of its judgment on the striking-out application, it criticised the Appellant’s conduct at the hearing. The Appellant applied for reconsideration of the ET’s judgment, which was refused, and she appealed against that refusal.

The EAT accepted the submission on behalf of the Appellant that there was a procedural irregularity and, therefore, an error of law, where the ET had represented in a letter that the Appellant’s application for reconsideration would be subject to a determination under Rule 72 (2); but had proceeded to dismiss the Appellant’s application summarily under Rule 72 (1). The EAT further accepted the submission on behalf of the Appellant that the parties – and, in particular, the Appellant – were not to know, and did not know, that the Employment Tribunal had issued that letter in error. The EAT held, however, that the procedural irregularity made no material difference to the outcome. The reconsideration application could not have been successful in any event. It sought to challenge the reasons in relation to the ET’s criticism of the Appellant’s conduct. These reasons were not essential to the ET’s decision on the strike-out application, which was favourable to the Appellant. The EAT held that an application for reconsideration was not a vehicle for challenging reasons, in so far as not part of the essential reasons upon which the decision is based. In these circumstances, the application for reconsideration was not permitted by the Tribunal Rules.

In appeal Y, the EAT determined a number of issues as follows:

(1). The EAT determined the correct test for the determination of “exceptional circumstances” in Rule 30A where a third postponement was sought on the grounds of short-term ill-health. The EAT agreed with the submission on behalf of the Appellant that the category of exceptional circumstances is not closed, and it is a question for the judgment of the ET in each case as to what constitutes exceptional circumstances. The EAT accepted the submission on behalf of the Appellant that no assistance could be derived from rule 30A (4) (b) which was concerned with ill health consequent upon a long-term condition. The EAT further accepted the submission on behalf of the Appellant that the overriding objective in Rule 2 applied to “any power” given to the ET under the Rules, so “including the power to adjourn in Rule 30A (3)”. This meant that the question before the ET was whether there were exceptional circumstances, rather than a separate test of fairness, which was satisfied in any event. This involved considering the least worst solution. The EAT held that there were no exceptional circumstances where the Appellant had laryngitis and needed to rest her voice for a week. The ET had legitimately considered that the Appellant could participate despite her laryngitis. The ET had found that the equipment provided by R worked perfectly. However, the Appellant had not attended to make use of it, and there was no requirement that a person has to be present at a hearing for the hearing to be fair.

(2). The EAT also considered whether there had been an infringement of the Appellant’s Article 8 rights where the ET had directed a case management hearing to be held in private, and where reference was made to the contents of the private hearing in the course of a public hearing. The EAT held that Article 8 was not engaged. It held that the concept of a private hearing in a Court or Tribunal is not the same as a litigant’s private life. The EAT held that no reasonable expectation of privacy arose from the terms of the ET’s Notice of Hearing directing that the hearing be in private. The EAT held that, even if Article 8 had been engaged, the ET had not erred in the balancing exercise when considering an application under Rule 50.

(3). The EAT rejected the Appellant’s contention that the ET was perverse.

The judgment can be accessed here: https://www.bailii.org/uk/cases/UKEAT/2021/2019-000480.html

ARFAN KHAN SUCCESSFUL IN ESTABLISHING THE CORRECT TEST IN INDEFINITE LEAVE APPEAL

Akinola, Commercial & Public Law, Practice - Court of Appeal, Public Law - Court of Appeal, Uncategorized, , , , , , , , ,

Leave to remain: R (Akinola) v Upper Tribunal (Secretary of State for the Home Department interested party) [2021] EWCA Civ 1308 (Court of Appeal: Lord Justice Philips, Lord Justice Stuart Smith and Sir Stephen Richards)

The Court of Appeal has delivered a guidance decision in three cases on the interpretation and effect of s.3C of the Immigration Act 1971 in indefinite leave to remain cases.

The requirement that an applicant satisfy the 10 years lawful residence before applying for indefinite leave to remain is contained in Rule 276B of the Immigration Rules.

The purpose of s.3C leave is to protect the immigration status of those with existing leave pending the determination of a variation application or appeal in respect of that decision. It is framed to prevent an abuse of the system by permitting one application for variation. It provides that leave is extended during any period where:

“(a) the application for variation is neither decided nor withdrawn,

(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or

(c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act)” (emphasis added in italics).

The appeals concerned the effect of section 3C on (i) an appeal out of time for which an extension of time is granted, and (ii) a withdrawal and/or reconsideration of a refusal decision.

The principal question in dispute was whether leave revived with future effect or retroactively, so as to run continuously from the time when it otherwise expired at the end of the period in section 3C(2)(b) (§ 48).

On appeal to the Court of Appeal, the SSHD introduced a new policy based on the reasoning of the Upper Tribunal in R (Ramshini) v Secretary of State for the Home Department dated 31 July 2019 (JR/2156/2019). In Ramshini, relying upon the Court of Appeal decision in R (Erdogan) v Secretary of State for the Home Department [2004] EWCA Civ 1087, the Upper Tribunal held that an appeal is instituted under s.104 of the Nationality Immigration and Asylum Act 2002 when permission to appeal is granted out of time. As a result, in so far as material, the new policy of the SSHD (v.10) provided that s.3C leave revived prospectively from the date permission to appeal was granted, as opposed to retrospectively.

The Court of Appeal held that it was common ground that an out of time appeal for which an extension of time is granted engages section 3C (2) (c) as a pending appeal and results in a revival of s.3C leave (§ 48). It held that the linguistic considerations pre Ramshini, which sought to avoid the retroactive application of s.3C to out of time appeals, were not sufficient to cause it to challenge the common ground that section 3C (2) (c) can apply to an out of time appeal for which an extension of time is granted.

On Akinola’s challenge to the analysis of the Upper Tribunal’s decision in Ramshini, the Court of Appeal held that section 3C had retroactive effect from the date the Appellant’s notice is filed under rule 19 and 20 of the 2014 Rules, and not from the date that the Court extends time for appeal, as held in Ramshini (and adopted in the new policy of the SSHD). The Court of Appeal held that Ramshini was wrongly decided in so far as it relied on the decision in Erdagon: 

“[47]. The Secretary of State now accepts the approach in Ramshini and has changed her section 3C guidance to reflect it in the current version 10.0. Accordingly Ms Giovanetti QC, on behalf of the Secretary of State, accepted before us that an appeal out of time for which an extension of time is granted does cause leave to revive by virtue of section 3C(2)(c) but submitted that it does so only with future effect from the date when the extension of time is granted. On the other hand Mr Khan and Mr Hawkin, for Ms Akinola and Mr Alam respectively, took the approach in Ramshini one step further, submitting that when section 3C(2)(c) is engaged by an appeal out of time for which an extension of time is granted, it extends the section 3C leave with retroactive effect so as to make that leave continuous from the end of the period in section 3C(2)(b) when it otherwise expired. As a subsidiary challenge to the analysis in Ramshini, Mr Khan argued further that where an extension is granted for an appeal out of time, the appeal is instituted when the notice of appeal is filed, not when the extension of time is granted, and that it is therefore pending for the purposes of section 3C(2)(c) from the time when the notice of appeal is filed.

[48]. It is therefore common ground that an out-of-time appeal for which an extension of time is granted engages section 3C(2)(c) as a pending appeal and results in a revival of the section 3C leave. The principal question in dispute is whether that leave revives only with future effect or does so with retroactive effect so as to run continuously from the time when it otherwise expired at the end of the period in section 3C(2)(b).  I have found that a difficult question. There are substantial pointers in each of the two directions canvassed in argument before us, but also in the direction of the position as widely understood prior to Ramshini…

[59]. The UT in Ramshini, citing R (Erdogan) v Secretary of State for the Home Department [2004] EWCA Civ 1087, held that an appeal is instituted at the point when the FTT grants permission to appeal out of time, i.e. when the FTT decides to extend time for appealing. The Secretary of State has again accepted that position. Mr Khan submitted, however, that the decision in Erdogan is distinguishable and that on proper analysis an out-of-time appeal is instituted when the notice of appeal is filed, even though the existence of a valid appeal from that date will depend on the later grant of an extension of time.

[63]. Given the different wording of the primary legislation and the rules in force at the time, and the extent to which Newman J’s reasoning was based on such wording, the judgment in Erdogan case appears to me to be distinguishable and to provide no real assistance in determining when an appeal out of time is instituted in accordance with the legislative regime that governs the present cases. In distinguishing Erdogan on a different issue in R (Secretary of State for the Home Department) v Immigration Appeal Tribunal [2004] EWHC 3161 (Admin), Collins J noted at [44] that “the Rules did not at that stage provide for an appeal to exist in circumstances where there was an application to the Tribunal out of time”. 

[64]. Accordingly, the UT in Ramshini was in my judgment wrong to rely on Erdogan on this issue and wrong to reach the conclusion it did on the issue.  In my judgment, for the reasons given above, where an extension of time is granted for an appeal out of time, the date when the appeal is instituted and becomes a pending appeal within section 3C(2)(c) is the date when the notice of appeal was filed, not the date when the extension of time was granted. That involves the acceptance of an element of retroactivity, in that where the grant of an extension of time post-dates the filing of the notice of appeal it causes leave to revive from the earlier date when the notice of appeal was filed.  In this case, however, it seems to me to be the clear result of the relevant legislative provisions”.

Whilst the Court refused permission to appeal in Akinola, and dismissed the other two appeals, the Court of Appeal certified Akinola as a case which can be cited in other cases under Practice Direction para 6.1.

ARFAN KHAN appeared for Akinola instructed by DCK Solicitors.

The judgment can viewed here:

https://www.bailii.org/ew/cases/EWCA/Civ/2021/1308.html

 

 

 

 

 

ARFAN KHAN and KATHERINE ARCHER succeed in establishing the correct test to be applied to sexual misconduct appeals under s.40 of the Medical Act 1983

Appeal, Appeals by professionals, Commercial & Public Law, Court of Appeal decision, Disciplinary tribunals, Sexual misconduct by professionals, , , , ,

ARFAN KHAN and KATHERINE ARCHER succeed in establishing the correct test to be applied to sexual misconduct appeals under s.40 of the Medical Act 1983

On 30 April 2021, in Okpara & Anor v General Medical Council [2021] EWCA Civ 623, the Court of Appeal (Macur, Davies and Lewis LJJ) ruled on the correct test to be applied by the High Court in appeals brought by doctors pursuant to s.40 of the Medical Act 1983, particularly in sexual misconduct appeals. The Court held that the High Court (Administrative Division) had applied the wrong test.

Following a two-day appeal, and a reserved judgment, the Court of Appeal held (Nicola Davies LJ giving the judgment of the court), that there was a line of authority, reflected in Jagjivan which indicates that cases of sexual misconduct fall within a category where an appeal court can more readily assess whether a particular sanction is appropriate and thus give less weight to the expertise of the Tribunal. The Court endorsed that line of authority and held that the High Court had erred in following Bawa-Garba v General Medical Council [2019] 1 WLR 1929 in this sexual misconduct case:

[91] Counsel on behalf of Dr Okpara identifies a tension between the sexual misconduct cases referred to in Jagjivan, which permit the appellate court to decide issues of weight for itself without deferring to the expertise of the Tribunal, and the approach in Bawa-Garba, where the court defers to the expertise of the Tribunal by adopting a restrictive error of principle approach on appeal, akin to a review rather than a rehearing. It is this tension which Leggatt LJ was referring to when granting permission to appeal. 

[113] …We conclude that the judge, in following Bawa-Garba in this case, did fail to have regard to the line of authority reflected in Jagjivan …We agree that in matters such as dishonesty or sexual misconduct, the court is well placed to assess what is needed to protect the public or maintain the reputation of the profession and is less dependent upon the expertise of the Tribunal.  It follows that we find that the approach of the judge to the sanction imposed upon Dr Okpara was wrong in that he did not assess whether the sanction was necessary or appropriate in the public interest or was excessive or disproportionate. 

Applying Ghosh v General Medical Council [2001] 1 WLR 1915 and Khan v General Pharmaceutical Council [2017] 1 WLR 169, the Court of Appeal held that the test on s.40 appeals was whether the sanction imposed by the Medical Practitioners Tribunal was “wrong” and that the approach at the hearing, which was appellate and not supervisory, was whether the sanction imposed was appropriate and necessary in the public interest or was excessive and disproportionate. The appeals under s.40 are by way of a rehearing, rather than review, and it is not sufficient for intervention to turn on the more confined grounds of public law review such as irrationality.

The Court proceeded to consider the sanction afresh. It upheld the High Court on the sanction of erasure.

The full Judgment is available here.

ARFAN KHAN and KATHERINE ARCHER, instructed by DCK Solicitors, acted for the second appellant Dr Okpara, who succeeded in establishing the correct test to be applied by the High Court in a sexual misconduct appeal pursuant to s.40 of the Medical Act 1983.

 

Employment Appeal Tribunal orders all contested grounds of appeal to proceed to a full hearing

Appeal, Court of Appeal, Employment Appeal Tribunal, Race discrimination, Sex discrimination, Uncategorized, , , ,

Employment Appeal Tribunal orders all contested Grounds of Appeal to proceed to a full hearing

At a one-day in person contested hearing in the Employment Appeal Tribunal (“the EAT”), HHJ Auerbach ordered all Grounds of Appeal to proceed to a full hearing. The appeal has a complex contested history. It involves claims of sex and race discrimination, victimisation, and harassment.

Arfan Khan led for the Appellant.

The judge ordered a transcript of judgment to be produced. That approved judgment can be accessed through the following link:

Approved Employment Appeal Tribunal Judgment

 

 

Court of Appeal grants permission to appeal

Commercial and Chancery litigation, Court of Appeal Barrister, Professional misconduct - Legal test, Public Law - Court of Appeal, , ,

The Court of Appeal (Civil Division) has granted permission to appeal on the papers in a second appeal in Okpara v General Medical Council [2019] EWHC 2624 (Admin). The appeal raises an important point of principle regarding whether sexual misconduct appeals fall within a category where an appeal court can more readily assess whether a particular sanction is appropriate and thus attach less weight to the expertise of a tribunal.

Arfan Khan acted for the successful Appellant.