Arfan Khan represented the Bar Council of England and Wales in a speech on Changes to the Bar. The speech was delivered to the Association of Graduate Careers Advisory Services, University of Law (incorporating the College of Law). The full speech can be accessed through the following link: SPEECH FOR BAR COUNCIL
All posts by Arfan Khan
Arfan Khan selected as One to Watch in Chancery and Commercial Law
Acquisition International is a leading Magazine which states it “works alongside leading industry analysts to ensure we publish the most up to date figures and analysis. Through our regular features and our regional, sector and specialist reviews, we thoroughly research and publish today’s corporate finance news in cooperation with the leading professionals in the industry”.
Acquisition International conducted a monthly search for the Ones to Watch “around the globe” that are “providing peerless service and achieving stunning results, both for themselves and their clients”.
Arfan Khan was selected by Acquisition International as the One to Watch in Intellectual Property, Chancery and Commercial Law. Although some of the questions and answers are reproduced below, the full article can be accessed by clicking on the following:
One to Watch Arfan Khan
Arfan Khan Intellectual Property, Chancery and Commercial – Acquisition-International
“You have appeared in numerous reported cases in the Court of Appeal. Do you think the appeal system serves
the public well?
Yes. Certainly, the Court of Appeal Civil Division in the UK remains an important check on the abuse of executive power and injustice. It has two functions. The first is to correct wrong decisions so as to ensure justice between the parties. The second is a public objective which involves setting precedents and clarifying the law. It can be seen to be performing these dual objectives in numerous reported cases, which are freely available to the public in a legal database called BAILII. It seems to me that these dual objectives lead to the necessary development of the common law by ensuring that it remains in line with social change”.
When working with clients, what are the main factors and areas to consider in bringing about a successful result?
The most important one is time. It is necessary to be available at all times, and that involves being available over the weekends, and the early hours of the morning upon request. The law never sleeps. Metaphysically speaking, time in that sense is not a measure of unit that can be selfishly measured through drawing boundary lines between the person and self. It is rather linear in the sense that it is mutually shared as a sense of human worth. It is that worth which lies at the bottom of any judicial verdict or successful result.“
London Chancery Barrister Arfan Khan successfully resists an application in the Chancery Division for judgment in the sum of £2.5 million
The claimants alleged that the defendant (G) had, in effect, defrauded them of some £8m. In 2011, a freezing order was obtained on an application without notice. Within a month or so, that freezing order was discharged. The claimants subsequently learned that a company owned and controlled by G had obtained an arbitration award in its favour for a sum of some $6m, and it appeared that some $2m was credited to an account in the name of a company which G owned. The claimants applied for a new freezing order, which was granted on a without notice application. The matter again came before the court and an order was made by consent (see [5] of the judgment).
The claimants applied for orders: (i) that a stay of the enforcement of the judgment for £2.5m be lifted; (ii) an order that the funds standing to the credit of an account in Abu Dhabi be transferred to an alternative account; (iii) that G take all necessary steps needed to execute a second legal charge over the property; and (iv) that the defendant swear and serve on the claimants an affidavit containing certain information. G did not have the opportunity to respond to the evidence served by C.
G submitted that C was not entitled to judgement in the sum of £2.5 million on the facts, and that there was a stay in place, preventing wider disclosure orders from being obtained.
The issue for consideration was whether the orders sought should be granted.
The court ruled:
On the facts, the application for judgement for £2.5m was misplaced and premature. Accordingly, the court would decline to enter judgement in favour of the claimants and decline to make an order for the execution of the second charge: paras [15], [19], [28] [22], [23] of the judgement.
The Court held that there was stay in place and did not think there was any merit in a further affidavit of assets, or the provision of information in view of the stay of the proceedings [23].
At the present stage, the court was prepared to make only one order, which was that G should give the information relating to his expenditure on ordinary living expenses and legal advice and representation. In all other respects the court would decline to make any orders (see [31] of the judgement).
For the full judgement click below:
Court of Appeal grants permission to appeal in the free speech appeal of Pamela Geller and Robert Spencer
London Court of Appeal Lawyer and barrister, Arfan Khan appears successfully in the Court in a free speech case involving the exclusion of US nationals from the UK. He previously successfully appeared in the appeal involving the exclusion of the Dutch MP, Geert Wilders from the UK. The appeal was successful and the ban was overturned. Arfan Khan was selected Times Lawyer of the Week:
https://www.thetimes.co.uk/article/lawyer-of-the-week-arfan-khan-hc9m5ftnhnt
The Geert Wilders case is reported as GW (EEA Reg: 21 Fundamental Interests: Netherlands) [2010] I.N.L.R. 337. It can be accessed through the following link: http://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKIAT/2009/00050.html&query=(Geert)+AND+(Wilders)
Lord Justice Moses granted Robert Spencer and Pamela Geller permission to appeal against the refusal of leave to proceed by way of judicial review. The grant of permission to appeal is reported in an article by Mark Steyn in a snapshot article on free speech around the world which states:
“Robert Spencer and Pamela Geller have achieved a small, preliminary win in what will prove a long battle to overturn the outrageous decision by Theresa May, Britain’s Home Secretary, to ban them from the country:
In an important victory for the freedom of speech, Lord Justice Moses of the British Court of Appeal has granted permission for an appeal on the papers to be heard in the case of the banning of Pamela Geller and Robert Spencer from the United Kingdom. Counsel for Geller and Spencer, Arfan Khan, argued in writing that the unacceptable behaviours policy applied by the Secretary of State to exclude Geller and Spencer was unlawful. Lord Justice Moses held that:
“There are important issues to be determined as to the lawfulness of a policy, which arguably permits the SOS to refuse entry to those whose presence may incite violence but who themselves, arguably, may not intend to do so.”
That’s the very definition of a heckler’s veto. It means that any belligerent Muslim merely has to say “If this event proceeds, we’ll go bananas” to get it closed down. Many persons of a moderate and temperate disposition seem to regard Pamela Geller as beyond the pale – my old National Post colleague Jonathan Kay can get awfully sniffy about her – and that’s fine as long as it remains metaphorical. When you place her literally beyond the pale, as the wretched Theresa May has done, you are engaging in an act of vandalism against one of the pillars of a free society.
Furthermore, if Mrs May gets away with this, what’s more likely to happen? That it remains a one-off? Or that the pale shrinks even further? Britain is now a land where you’re arrested for quoting Winston Churchill in public. On this 70th anniversary of D-Day, ask yourself whether Sir Winston would have thought it worth fighting on the beaches for so reductive a vision of liberty as that envisioned by his “Conservative” successors. And, even as Mrs May tightens the leash of permissible discourse, there’s not even any pretense that she’s operating to any coherent principles. Miss Geller and Mr Spencer were banned on the grounds that their presence would not be “conducive to the public good”. As I wrote at the time:
By contrast, the presence of, say, Anjem Choudary, philosophical mentor of the Woolwich head hackers and a man who calls for the murder of the Prime Minister, is so “conducive to the public good” that British taxpayers subsidize him generously and provide a half-million-dollar home for him to live on. Mrs May’s Home Office has just admitted to the UK Muhhamed al-Arefe who advocates wife-beating. Perhaps Mr May will try out Imam al-Arefe’s expert advice on the beneficial effects of “light beating” on Theresa this weekend – or is spousal abuse only “conducive to the public good” of Muslim women?
In other words, “conducive to the public good” boils down to the usual watery and inconsistent cocktail of appeasement, opportunism and misdirection. Theresa May is not competent to decide for her subjects the boundaries of free-ish speech. That is why it is necessary for her to lose this case, big time. So I congratulate Mr Khan and his clients on a small but important victory”.
The full article can be accessed through http://www.steynonline.com/6400/the-habits-of-liberty
The appeal which was dismissed is reported as Geller & Anor, R (on the application of) v The Secretary of State for the Home Department [2015] EWCA Civ 45, [2015] All ER (D) 54. The case can be accessed through the following link: http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2015/45.html&query=(Geller)
APPEAL IN MICHAEL V OFFICIAL RECEIVER
Appeal Court Barrister, Arfan Khan appears successfully in the Court of Appeal in Michael v Official Receiver [2014] EWCA CA Civ 534. The appeal is against a decision of Roth J upholding a decision of the Chief Registrar against whom the Appellant alleges predetermination and apparent bias. Permission to appeal was granted by Lord Justice Rimer.
Appeal in a case involving allegations of procedural irregularity in the Employment tribunal and jurisdictional issues on appeal
London Court of Appeal Lawyer, Arfan Khan appears successfully in the Court of Appeal in Gaurilcikiene v Tesco Stores [2013] EWCA Civ 1612 where Lord Justice Rimer grants permission to appeal against a decision of the Employment Appeal Tribunal: see paras 11-15 in the reported judgment as follows:
“11. Mr Khan, in support of the applicant’s renewed permission application, advanced cogent arguments to the effect, as he asserted, that the Macinnes tribunal had not dealt fairly with the emergence at the substantive hearing of Tesco’s explanation as to the omission to respond to the 29 May letter. He emphasised the disadvantage to Mr Michael, who is not a professional advocate, in dealing with such a late, new case. He submitted that the tribunal had not, as it should have done, drawn the fact of the change of case expressly to Mr Michael’s attention so that he could take stock of how to respond to it.
12. He also emphasised the apparent inadequacies of the Macinnes findings. Paragraph 69 records that ‘[Tesco] had no record of having received it at the [registered office]’, but does not identify upon what evidence that was based. Such a finding could only be made as a result of evidence as to what search had been made of Tesco’s records, but the tribunal does not identify such evidence. The same paragraph asserts that the applicant was ‘unable to prove that the document had been received at [the registered office]’, yet it might also be said that, following the findings of the Sage tribunal, it had already been decided that the letter had been received by Tesco: how else could the Sage tribunal hold that the ET had ‘jurisdiction to hear the … claims for race discrimination as a grievance was raised by the Claimant on 29 May 2009’?
13. Having held in paragraph 69 that the applicant had been unable to prove that the letter was received by Tesco, the Macinnes tribunal proceeded in paragraph 83 to find that ‘the [applicant] has proved that [Tesco] did effectively ignore [the letter]’. How could Tesco ‘effectively’ (whatever that means) have ignored what the applicant had failed to prove it had received? The rest of paragraph 83 suggests, however, that the evidence adduced by Tesco did not prove that it had never received the letter, but that any oversight in dealing with it was an administrative error. What evidence supported the latter conclusion?
14. With respect to the Macinnes tribunal, their findings as to the receipt or otherwise of the letter by Tesco appear to me to be unsatisfactory. Their somewhat unsure conclusions can, I consider, be said to be insufficiently reasoned”
London Commercial Lawyer Arfan Khan successfully represents the former Bank of Ireland director
London Commercial Lawyer, Arfan Khan successfully defends a claim brought against the former director of the Bank of Ireland involving a Penthouse club in Leicester Square. The case has been reported in the FT in so far as material as follows:
“According to a court order issued by the Queen’s Bench Division on 12 September, claimants Paul Carew and Neville Mody agreed terms of settlement and apologised for making a string of claims against Irfan Qadir.
Mr Qadir, who was represented by barrister Arfan Khan, refuted the accusations relating to events that allegedly took place in 2005, when Mr Carew and Mr Mody were owners of the Penthouse club in Leicester Square.
According to the court order, Mr Mody and Mr Carew had made several claims against Mr Qadir, including an allegation that he had been associated with a criminal gang and had used 10 men with large dogs to take over the Penthouse while he was a director of the Bank of Scotland.
They also claimed that Mr Qadir – who has received the Star of Pakistan business honour for services to banking – was responsible for threats of violence and intimidation towards the claimants and their families.
In the court order, the two men agreed to withdraw all their claims against Mr Qadir, and agreed to apologise for making such allegations. They have also agreed not to repeat these or any other allegations in the claims or to commence any further proceedings…”.
In a separate article it was published by “International The News” as follows:
“In the court documents, Qadir’s barrister, vigorously denied the accusation against his client contending that they were “scandalous and the proceedings were brought maliciously in order to tarnish the good reputation” of his client.
Qadir’s barrister at the pre-trial review also submitted, “Qadir had not received a single shred of credible evidence corroborating the extraordinary allegations and assertions of fraud and forgery” and that the court must order expert reports which will prove that his client is innocent. It was only when these expert reports were received was Qadir able to disprove the claims. The handwriting experts’ opinion was that the disputed signatures on the security documentation were not forged.
Qadir then successfully sued the newspaper, who had initially defended the claims and said there was truth in the story however, a few months later the newspaper admitted that there was no truth in the allegations and paid substantial damages to Qadir — a law suit which has estimated to have cost the Mail on Sunday owners, Associated Newspapers Ltd, in excess of $1,000,000.
Qadir has been profiled in the Financial Times as a rising banking star and has won several awards. In 2011 he whistleblew to George Osborne, in relation to wrong doing at the Bank of Ireland, namely, the Bank of Ireland’s exploitation of £10 billion of deposits from more than 2 million customers of the post office.
This began a hostile dispute with his employer and several months later they both parted company, which resulted in Qadir suing his former employer for US $10,000,000. It is understood the Bank of Ireland entered into an out of court settlement with Qadir prior to the start of his case — a settlement which is rumoured to be in the millions”.
Arfan Khan succesfully appears in diplomatic immunity case – Chancery Division
The claimant worked as a chef and general domestic servant for the defendant in Uganda under a contract (the 1998 contract). The claimant subsequently performed work for the defendant in the UK.
The claimant commenced proceedings against the defendant for failure to provide her with a copy of her contract of employment, as required by section 1 of the Employment Rights Act 1996 and failure to pay her salary in full. In response to the claim, the defendant invoked diplomatic immunity. The defendant contended that, although she had previously employed the claimant as her chef and housekeeper in Uganda, the earlier arrangements had been superseded by a written contract entered into in October 2006 (the 2006 contract). By that juncture, the defendant had become deputy head of mission at the Ugandan High Commission. The defendant contended that from that point, the claimant was employed by the High Commission, rather than by the defendant personally. In May 2011, the defendant became deputy head of mission at the Ugandan Embassy in Rome. In October 2011, the defendant denied signing the 2006 contract.
The court made orders giving the parties permission to file further evidence and directing that the matter be relisted (the October orders). The defendant sought the discharge of the October orders and a declaration that the English courts had no jurisdiction.
The defendant submitted that: (i) the claimant’s claim was barred regardless of whether the 2006 contract was entered into; (ii) having left the High Commission, she had immunity under article 39(2) of the Vienna Convention on Diplomatic Relations; and (iii) a circular from the Ugandan Ministry of Foreign Affairs confirmed the importance to the defendant’s work of her receiving domestic help.
The claimant submitted that, having left the UK, the defendant had immunity only in respect of ‘acts performed… in the exercise of functions as a member of the mission’ and denied her claims arose from such acts. It fell to be determined whether diplomatic immunity existed. The application would be dismissed.
The general principle was that a diplomatic agent who had left a mission continued to enjoy immunity under article 39(2) of the convention, with respect to acts performed by him in the exercise of his functions as a member of the mission. That immunity reflected the fact that acts so performed were in law the acts of the sending state. The residual immunity under article 39(2) was, however, less extensive than that enjoyed by a serving diplomat. A former diplomat would not necessarily have immunity in relation to claims by employees carrying out domestic duties (see [23], [24], [25] of the judgment).
In the instant case, the available materials did not enable the court to be satisfied that diplomatic immunity existed. The only dispute was that the parties had entered into the 1998 contract before the defendant had become a diplomat. There could therefore be no question of the defendant having entered into that contract ‘in the exercise of… functions as a member of’ the High Commission of Uganda to the UK (or any other diplomatic mission). It had not been established that the contract pursuant to which the claimant had previously been working for the defendant had been replaced or even varied.
The court was required to proceed on the basis that the claimant had continued to be employed pursuant to the 1998 contract and that the alleged 2006 contract had never taken effect. It had not been demonstrated that the nature of the claimant’s job had changed in any significant way when she had arrived in London. There was, in particular, no evidence that the claimant had carried out work for the High Commission as such. The circular had not been shown to have had any impact on either the contract under which the claimant had been employed or the nature of her job. Further, although the circular spoke of emoluments being ‘met by the missions’, according to the particulars of claim the claimant had continued to be paid by the defendant rather than the High Commission until late 2010.
Moreover, the provision of a housekeeper or cook ‘to promote conducive working conditions’ could, potentially, be consistent with such provision being thought to be of indirect rather than direct benefit to diplomatic functions. In all the circumstances, the court could not be satisfied from the materials that the claimant’s claims arose out of ‘acts performed… in the exercise of the defendant’s functions as a member of the mission’ (see [27] of the judgment).
This case has been reported widely and is referred to in the Lawyer: see http://www.thelawyer.com/judgment-call-20-february-2012/1011467.article
The claim was subsequently settled on terms when Ms Wokuri was paid a sum of money in full and final settlement of her claim.
Times Lawyer of the Week/Arfan Khan
Times Lawyer of the Week/Arfan Khan
“Arfan Khan, a barrister at the Chambers of Mark Littman, QC, acted for Geert Wilders. The controversial Dutch MP was barred from entry to the UK to address the House of Lords in February. That bar was overturned by the Asylum and Immigration Tribunal and he has now visited the UK”: https://www.thetimes.co.uk/article/lawyer-of-the-week-arfan-khan-hc9m5ftnhnt
Arfan Khan is a leading Chancery, Commercial & Public Law Barrister, practising predominantly in the Court of Appeal, Supreme Court and the High Court in a broad range of Chancery, Commercial Public and International Law Disputes.
Selective reported cases:
• Yadly Marketing v Secretary of State for the Home Department [2017] 1 WLR 1041.
• SA Builders & Contractors Ltd v Holm [2016] EWCA Civ 712.
• Axia FX Ltd v RBS (2012-2016).
• Anami Holdings v Gill [2014] EWHC 3800 (Ch).
• Bank of Ireland v Gill [2014] B.P.I.R. 156.
• Gaurilcikiene v Tesco Stores Ltd [2013] EWCA Civ 1612.
• Chilab v King’s College London & Anor [2013] 2 Costs L.R. 191.
• Bank of Ireland v Jaffery and Gill [2012] EWHC 1377 (Ch); CA.
• Integral Memory Plc v Haines Watts [2012] S.T.I.1385.
• Nortel Networks UK Ltd (In Administration) v Unite the Union [2010] 2 B.C.L.C. 674.
• Chamberlin v Revenue & Customs Commissioners [2010] S.T.C.2782; [2011] S.T.C.1237.
• Osuji v Holmes [2011] R.V.R. 228; Times, April 19, 2011.
• Attorney General of St Lucia & The Judicial Legal Services Commission v Horace Fraser [2009] 2
LRC 26 (PC).
• Attorney General of Zambia v MCD [2008] Lloyd’s Rep FC 587.
• Day v Haine [2008] B.C.C.845.
• Benkharbouche v Embassy of Sudan, 4A Law & Others intervening [2015] I.R.L.R 301 (CA).
• Almalki v Reyes, 4A Law & Others intervening [2015] I.R.L.R. 289.
• R (on the application of Geller) v Secretary of State for the Home Department [2015] All ER (D)
54.
• Wokuri v Kassam [2013] Ch 80.
• Geert Wilders (Netherlands) v Secretary of State for the Home Department [2010] I.N.L.R 337.
Arfan Khan successful in insolvency appeal
Arfan Khan successful in insolvency Appeal. The Court of Appeal held that protective awards were debts provable in the liquidation.
The first instance judge had regarded himself as bound by Glenister v Rowe ([2000] Ch 76) and R (Steele) v Birmingham City Council ([2006] ICR 869). He held that the tribunal had a discretion not to make the awards, and therefore the awards were not provable. This was held to be the case even though it was submitted on behalf of the employees that the tribunal had no such discretion.
The appeal was allowed for two interlinked reasons: (i) as a matter of language, the liability to pay a protective award stemmed from the preliquidation breach of obligation, and (ii) given the complete breach of the obligation to consult, the employment tribunal realistically did not have a discretion to refuse an award. Under EC Directive 98/59, the tribunal was duty bound to make the awards. An employment law analysis of the case, based on Directive 98/59/EC and Susie Radin Ltd v GMB ([2004] ICR 893), provided a powerful basis upon which to distinguish both Glenister and Steele.
Arfan Khan appeared for the successful employee representative.