Category Archives: Appeal

High Court Appeal in Zambian Adoption Case Withdrawn

Appeal, Commercial and Chancery, Commercial and International Law, Court of Appeal, , , ,

High Court Appeal in Zambian Adoption Case Withdrawn

Arfan Khan appeared for the successful Claimant at trial and the successful Respondent on appeal in a Zambian adoption dispute, instructed by CV Brooks Solicitors.

On 30 July 2025, following a 2.5-day trial, Deputy Master Jefferis entered judgment for the Claimant. The Deputy Master declined to give effect to the Zambian judgment and held that the Claimant had been lawfully adopted by the deceased. He further determined that the Defendant was not entitled to letters of administration, ordered that the Zambian grant should not be resealed in England and Wales, and awarded costs against the Defendant. Repeated requests for adjournment were refused.

The Appellant subsequently instructed counsel and filed a notice of appeal seeking permission to challenge the trial judgment on complex grounds, including alleged errors of law and fact and a proposed challenge to the fairness of the trial. The Appellant applied for a stay of execution, which was refused on the papers by Mr Justice Mellor. A renewed stay application was made, and an extension of time to file the appeal bundle was requested. The extension request was unopposed.

Following submissions by Arfan Khan on both the renewed stay application and the merits of the proposed appeal, the Appellant’s counsel elected not to pursue the stay at the oral hearing. Mr Justice Rajah dismissed the renewed stay application and ordered the Appellant to pay the Respondent’s costs. The Appellant subsequently withdrew the appeal, which Mr Justice Rajah formally dismissed.

Arfan Khan has acted as lead or sole counsel in close to over 70 reported cases, including landmark decisions in the Court of Appeal and the UK Supreme Court, demonstrating the strength of his practice in Chancery, Commercial, and Public Law.

Press coverage and the Master’s judgments can be accessed via the following links:

Note of the Trial Judgment

  • Master’s Interlocutory Decisions:

Adjournment Decision 1

Adjournment decision 2

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

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

 

 

Arfan Khan leads against HMRC in a first time tax appeal

Appeal, Chancery Division, Chancery Litigation, Commercial and Chancery, Commercial and Chancery litigation, Commercial and International Law, Court of Appeal, Leading Chancery Barrister, Leading Counsel, Tax and Chancery Chamber,

Arfan Khan led Mr Joseph Howard in the Court of Appeal on a first time tax appeal of general public importance.

The Appellant is an Italian company. It provides containers and logistics services across Europe. The Appellant arranged the transport of goods for a customer, a Romanian company, GBT. This included a quantity of wine, which was seized by UK Border Force on the basis that excise duty had not been paid.

On 12 May 2015, HMRC issued an assessment to excise duty in respect to the seized wine to GBT. On 17 December 2015, HMRC issued the appellant with a reduced penalty assessment calculated on the basis that the Appellant’s conduct was not deliberate.

The Appellant appealed to the FTT on the basis that Article 37 of Directive 2008/118/EC (“the Excise Duties Directive”) meant that as the wine had been lawfully seized and destroyed, no excise duty point ever arose, the appellant was an innocent agent, and the penalty assessment was out of time. The FTT dismissed the appeal.

The Appellant appealed to the Upper Tribunal. The Upper Tribunal granted permission to appeal. However, it dismissed the appeal holding that Article 37 did not apply. The Appellant applied directly to the Upper Tribunal for permission to appeal to the Court of Appeal. Arfan Khan was then instructed and led a written skeleton argument for permission to appeal to the Court of Appeal.

The Upper Tribunal exceptionally granted permission to appeal against its own decision on the Article 37 ground. It held that the appeal raised a point of general public importance in respect of which there were real prospect of success.

The Respondent filed a Respondent’s notice seeking to uphold the Upper Tribunal on the basis that excise duty was chargeable by reason of a deemed duty point following the reasoning in Jones v HMRC, and that Article 37 did not as a result apply.

The Respondent’s notice proceeded contrary to what was alleged to be written concessions made by the Respondent. It was alleged that the Respondent had conceded before the Upper Tribunal that the basis of seizure did not necessarily require duty points to arise where the goods had been lawfully seized, and there was no challenge to the legality of the seizure.

Following the grant of permission, the Appellant filed supplemental submissions in response to the Respondent’s notice. These included a novel submission, not considered in Jones v HMRC, namely that, if the statutory deeming provisions apply to bar jurisdiction, they should be set aside in order to give effect to Article 37 of the EC Directive and Article 47 of the EU Charter and/or declared incompatible with Article 6 of the ECHR. The supplemental submissions distinguished the decision in Jones.

The Court of Appeal (Lord Justice Patten, Lord Justice Baker, and Mr Justice Mann) dismissed the appeal holding:

“50. As Mr Khan and Mr Howard on behalf of the appellant accepted in the course of the hearing before us, unless Article 37 subsequently disapplied its effect, there can be no doubt that the provisions of Article 33 were satisfied. The wine in the fifth container had been “released for consumption” in Italy. At the point of arrival at Purfleet, it was being “held for commercial purposes … in order to be delivered here”. Accordingly, it was subject to excise duty here and excise duty became chargeable here. At that point, under regulations 5 and 6 of the HMDP Regulations, an “excise duty point” arose and the appellant, being a person “concerned in carrying … the goods”, became liable to a penalty under paragraph 4 of schedule 41 to the Finance Act 2008.

51. Did Article 37 apply so as to prevent excise duty being chargeable on the wine? In my judgment, it did not, for the reasons identified by the UT at paragraphs 61 to 71 of its decision. …

52. In the context of this appeal, the construction of Article 37 turns on two phrases: (1) “during their transport in a Member State” and (2) “as a consequence of authorisation by the competent authorities of that Member State”.

53. I agree with the UT that “transport” should be given its ordinary meaning. For my part, I derive no assistance by comparing and contrasting the use of the word “movement” in Article 38. The wine in the appellant’s container was being transported from the ship to its ultimate destination in the UK. Had it continued on its journey, it would have been “transported” until it reached its destination. But it did not continue on its journey. It was seized by Border Force and held by that agency until it was destroyed following forfeiture. At the time of its destruction, it was not being “transported”.

54. As for the second phrase, I do not accept the submission that the ultimate destruction of the wine by or on behalf of Border Force following forfeiture falls within the scope of the phrase “as a consequence of authorisation by the competent authorities”. The destruction of the wine following forfeiture took place on the orders of Border Force. The word “authorisation” means the granting of official permission. The plain and obvious purpose of including that phrase in Article 37 is to cover the destruction of goods which are partially, but not totally, destroyed in transit. Article 7(4) provides that, for the purpose of this Directive, goods shall be considered totally destroyed or irretrievably lost when they are rendered unusable as excise goods. But there will be other cases where the goods are substantially damaged while being transported but have not become totally unusable (for example, where a proportion of a consignment of wine bottles are broken but the remainder are intact). Article 37 allows for circumstances where the competent authorities may formally agree to the destruction of the remainder so as to remove them from the scope of the duty”.

The Court of Appeal held that the Respondent’s notice had become academic by reason of the Appellant’s concession on appeal as follows:

“63. I would be reluctant to embark on a lengthy analysis of HMRC’s alternative argument raised in its respondent’s notice based on its interpretation of the decision in Jones. I take that view for three reasons. First, as I have just concluded, I consider the UT’s decision as to the construction of Article 37 was correct. On behalf of the appellant, Mr Khan in effect accepted at the outset of the hearing before us that, subject to its being subsequently removed by Article 37, an excise duty point arose under Article 33, and it must have persisted. The two factors which HMRC are seeking to have “deemed” from the failure of the appellant to contest the condemnation of the wine – that excise duty was chargeable and an excise duty point had arisen – are therefore conceded by the appellant. The “deemed duty” point is therefore of academic interest only in this appeal..”.

As a result, and amongst other reasons, the Court of Appeal refused to offer any expansive dicta on the Respondent’s notice. However, it concluded that the Upper Tribunal’s comments on the interpretation and application of the decision in Jones (based on the Respondent’s concession below) should not be regarded as authoritative. The Court of Appeal did not permit the Respondent to resile from what the Upper Tribunal described as a concession. It left open the possibility of argument in future cases.

Arfan Khan has a specialist appellate practice in Chancery, Commercial and Public law. He also has a substantial litigation practice in Chancery, Commercial and Public law. He is an experienced pleader, as evident from his numerous reported cases at appellate level, as well as in the High Court both as a leader and sole counsel.

The Court of Appeal judgment can be access here:

https://www.bailii.org/ew/cases/EWCA/Civ/2020/405.html

General Transport v HMRC

 

Court of Appeal grants permission in important trust appeal

Appeal, Chancery Division, Court of Appeal, Privy Council appeals, Trust and Property appeal,

Court of Appeal (CHD) grants permission to appeal in important trust appeal

The Appellant, a former solicitor, claimed he held a beneficial interest in property by way of constructive or resulting trust. The property was purchased as an investment. It was registered in the sole name of the Appellant’s wife. A joint charge was placed over the property by the Legal Services Commission. This was done in order to secure the joint indebtedness of the Appellant and his wife arising out of their legal practice as solicitors.

The Court at first instance held that the Appellant was not entitled to a beneficial interest in the property by way of constructive or resulting trust, and that the property vested in the wife’s joint trustees in bankruptcy.

The Appellant appealed. Permission to appeal was refused on the papers by the Honourable Mr Justice Snowden. The Appellant renewed permission to appeal on the issue of whether he had a beneficial interest in the property. Following an oral hearing in the Business & Property Courts of England & Wales (Chancery Appeals), the Honourable Mr Justice Snowden was ‘persuaded’ to grant permission to appeal limited to that issue without expressing a concluded view on the merits of the appeal.

The appeal raises evidential issues concerning the correctness of the first instance judge’s findings of fact on the Appellant’s beneficial interest in investment property in light of the LSC charge, and all the relevant circumstances.

The appeal also seeks to establish a novel point of law in sole ownership cases involving the determination of beneficial interest in property. Namely where property is purchased as an investment, in the absence of an express direction by the Privy Council that its decision in Marr v Collie [2018] AC 631 represents the law of England and Wales, the Courts at first instance are bound to follow the Court of Appeal decision of Lord Neuberger to the contrary in Laskar v Laskar [2018] 1 WLR 2695.

This is consistent with higher authority, including the reasoning of the Supreme Court in Willers v Joyce [2018] AC 851 concerning the procedure in the Privy Council for holding that a Court of Appeal decision is wrong. This involves expressly making a decision that the Court of Appeal is wrong, and directing that the domestic courts should treat the Privy Council decision as representing the law of England and Wales. Marr does not expressly appear to overrule Laskar. Nor does it appear to contain the direction in question.

Arfan Khan represented the Appellant and did not appear below.

 

Chancery Division rules on the test for setting aside summary judgment and copyright infringement

Appeal, Chancery Division, copyright infringement, copyright infringement, High Court, Phonographic Performance, Phonographic Performance Judgment, summary judgment set aside test, Uncategorized, , , , , , ,
Phonographic Performance Ltd v Ambibola Balgun t/a Mama Africa [2018] EWHC 1327 (Ch)
Copyright infringement – Summary Judgment set aside test

The Claimant claimed that the Defendant had played sound recordings, which infringed copyright in relation to two songs, contrary to s.16 of the Copyright & Patents Act 1988 (“the CPDA”). The Claimant obtained summary judgment on its claim in the absence of the Defendant who was acting as a litigant in person. Following enforcement, the Defendant applied to set aside summary judgment. The Master refused to set it aside using CPR 39.3 (5) as a guide.

The Defendant appealed contending that

1. The Master’s approach to the principles applicable to setting aside an order for summary judgment obtained in the absence of a party was wrong, in that he had applied the test for setting aside judgment after a trial, which was not the right approach. The defence had real prospects of success because the defendant had authorised the playing of music in the restaurant, but he had not authorised the infringement of copyright.

2. He had no control over whether independent DJ’s played music infringing the copyright;

3. There were other reasons why this matter ought to go to trial, including the fact that it was inappropriate to conduct a mini trial at the summary judgment. (§ para 9 of the Judgment).

Miss Penelope Reed QC sitting as a Judge of the High Court Chancery Division held:

1. There was some force in the first argument, and it ought to be easier to set aside summary judgment orders in appropriate circumstances (§ para 13).

2. The Court should take into account other rules of the CPR which provide that judgments can be set aside such as judgments in default under CPR r 13 (§ para 14).

3. It was not inappropriate to take into account considerations set out in CPR r 39.3 (5). However, the Judge held that those considerations ought not to be too rigidly applied in circumstances where there has been no trial (§ para 14). There may be other relevant considerations, including whether there are other reasons why the matter ought to be tried (§ para 15).

4. The Master had used CPR r 39.3 (5) as a guide. Whilst another Judge may have taken a different view on the issue of whether the Appellant acted promptly, the Master could not be criticised for finding that the application had been made late. The Master had not erred (§ para 18).It is the authorisation of the playing of music in public which is relevant within the meaning of s.16 of the CPD 1988, and not the authorisation of specific songs which infringe copyright (§ para 28).

5. Amstrad could be distinguished on the basis that there was no control over use to which their equipment was put, whereas the Appellant had complete control over the playing of music in his premises (§ para 28).

6. DJ’s did not exceed the nature of the authority conferred upon them. Therefore, the Master’s decision was not at odds with the law of agency (§ 29).

7. There were no real prospect of success at trial and permission ought to be refused (§ para 30).

The Judgment can be accessed here:

http://www.bailii.org/ew/cases/EWHC/Ch/2018/1327.html

Judgment: Phonographic Performance Ltd

Arfan Khan argued the case on behalf of the Defendant, instructed by DCK Solicitors. He did not appear below.

State Immunity
Court of Appeal