Leading Intellectual Property Law Barrister of the Year
Arfan Khan wins Leading Intellectual Property Law Barrister of the Year award in the ACQ Global Awards. ACQ awards are awarded and judged on a number of criteria, including, professionalism, experience, value for money & responsiveness.
Court of Appeal grants permission to intervene in EU Charter case involving rights of the child
Barrister Arfan Khan successfully appears in the Court of Appeal for the Appellant intervener LB. This was an intervention by the Appellant LB in the appeal of MB v Secretary of State for the Home Department [2013] EWCA Civ 1701. For the MB case click on this link: MB case.
In the MB appeal it was argued that Article 18 of the EU Charter, in relation to refugee status and asylum, grants rights which are fundamental and wider or deeper than those granted by the European Convention on Human Rights, particularly Article 3.
In LB, the rights of the child under Article 24 of the EU Charter were engaged which states:
“ 1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests”.
In LB, the Court below had held that a deportation order, deporting the father of five children from the UK, was in accordance with Article 8 of the ECHR, given his precarious immigration history and criminal record. In the LB proceedings at first instance, Article 24 of the EU Charter had not been mentioned in argument.
By way of intervention in the MB appeal dated 4/6/2014, the intervener, LB, contended that the EU Charter has direct effect, so that the rights of children under Article 24 of the EU Charter, have enhanced importance in the balancing exercise under Article 8 of the ECHR.
The LB intervention contended that directly enforceable rights under Article 24 of the EU Charter, in particular the best interests of the child under Article 24 (3), are not expressly reflected in the Human Rights Act 1998, and weigh heavily in the balancing exercise under Article 8 of the ECHR.
LB thus sought permission to intervene in the MB appeal. Underhill LJ granted LB permission to intervene in the MB appeal on the basis that the Court of Appeal may be assisted by knowing that a similar issue to Article 18 of the EU Charter may arise in relation to Article 24 of the EU Charter. Following the LB intervention, the MB appeal settled.
Diplomatic Immunity, EU Law, Public International law
Arfan Khan, successfully led the 4A law intervention in a ground breaking decision of the Court of Appeal involving diplomatic immunity and public international law. The case is known as Reyes & Anor v Al-Malki & Anor [2015] EWCA Civ 32. The full judgment is at http://www.bailii.org/ew/cases/EWCA/Civ/2015/32.html
In this appeal the Claimants were successful before the ET. Judge Lewis held that “the exception under article 31 (1) (c) of the Vienna Convention, read consistently with art 6 of the European Convention on Human Rights, applied”.
On appeal to the Employment Appeal Tribunal (EAT), Langstaff J (President) upheld the claim to immunity – it being conceded by the Claimant for the purposes of the appeal that this was not “a commercial activity”, and assertion of diplomatic immunity was not a breach of Article 6 of the ECHR. The ET’s jurisdiction, being statutory, did not extend to the investigation of trafficking and, therefore, the claim based on article 4 of the ECHR was rejected. The ET held that service had been validly affected.
The Claimant, Ms Reyes, appealed contending that “the first and second respondents do not have diplomatic immunity”. The Respondent cross appealed on the issue of service.
4A law intervened on appeal. The intervention was opposed by the Secretary of State for the Foreign and Commonwealth Office. However, 4A law was granted permission to intervene by the Master of the Rolls and Ellias LJ.
The 4A law intervention, amongst other points, in summary contended:
1. A breach of contract for personal profit or gain is not immune from the jurisdiction of the Court as it constitutes commercial activity.
2. According to the US authority of Tabion v Mufti, which had been applied in the US, certain employment contracts, incidental to the functions of the mission, do not fall within the commercial activity exception to immunity.
The Court of Appeal (Master of the Rolls, Arden LJ and Lloyd Jones LJ), drawing on public international law jurisprudence, held that private activity for personal gain did not attract immunity. A private act for profit fell within the jurisdiction of the receiving state in relation to that activity. In doing holding so the Court used Article 42 of the Vienna Convention which states “A diplomatic agent shall not in the receiving State practise for personal profit any professional or commercial activity..”. In the words of the Court:
“..if the diplomatic agent … embarks on a private activity for profit, he becomes subject to the jurisdiction of the receiving State in relation to that activity. The use of the same words in article 31(1)(c) and article 42 shows that there is a clear link between the two provisions. The link is that, if the diplomatic agent acts in breach of article 42, he will not enjoy the immunity that article 31(1)(c) would otherwise afford him”.
The Court held that Tabion could not be brushed aside, and that there was no immunity in relation to acts carried outside official functions.
The Court of Appeal dismissed the appeals and the cross appeals.
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
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.“
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:
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 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.
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 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”.