Court of Appeal allows appeal in Yadly Marketing

Commercial and Chancery litigation, Court of Appeal, Court of Appeal allows appeal in Yadly Marketing, Practice - Court of Appeal, Statutory limitation periods, ,

Arfan Khan was instructed as lead Counsel and led on the appeal to the Court of Appeal. The appeal was allowed. The case is reported as Yadly Marketing v Secretary of State for the Home Department [2016] WLR (D) 621; [2016] EWCA Civ 1143.

The full judgment can be accessed online here or by clicking the PDF link below:

http://www.bailii.org/ew/cases/EWCA/Civ/2016/1143.html

Yadly v Secretary of State pdf

In so far as material, the case summary reported in the [2016] WLR (D) 621 reads as follows:

“Yadly Marketing Co Ltd v Secretary of State for the Home Department [2016] EWCA Civ 1143

Arden, Beatson Henderson LJJ

2016 Nov 8; 23

Practice — Documents — Filing — Penalty notice issued in respect of overstaying employees — Last day for filing appellant’s notice falling on public holiday when court office closed — Appellant’s solicitor filing notice day after — Whether statutory language to be construed as granting an extra day — Immigration, Asylum and Nationality Act 2006 (c 13), s 17(4)

The Home Office’s Civil Penalty Compliance team issued a civil penalty notice on the employer pursuant to section 15 Immigration, Asylum and Nationality Act 2006 in respect of employees who were working without appropriate leave. The employer filed a notice of objection under section 16. The Secretary of State issued an amended notification of liability on 25 April 2014, in which it was stated that, under section 17(4) of the 2006 Act, any appeal had to be brought on or before 26 May 2014, which in fact was a bank holiday Monday when the court offices were closed. On 27 May 2014 the employer attempted to issue an appeal at a county court which wrongly refused to accept it. A further attempt to issue the appeal was again wrongly refused on 28 May. The employer then posted an appellant’s notice to a different county court and the appeal was lodged on 30 May 2014. When the case was listed for appeal the Secretary of State applied for the appellant’s notice to be struck out as out of time. The judge allowed the Secretary of State’s application, determining that there was no provision in the 2006 Act for an extension of time for appealing, that CPR r 2.8(5) did not apply to statutory time limits and that the delay between the rebuff received at the county court on 27 May and the papers arriving at a different county court on 30 May indicated that the employer had not done all it could to bring the appeal within the prescribed time limit and therefore there were no exceptional circumstances justifying a time extension.

On the employer’s appeal—

Held, appeal allowed. While it was not open to the court to extend the time limit of a statutory period for the bringing of an appeal under section 17 of the Immigration, Asylum and Nationality Act 2006, where the last day of the specified number of days fell on a public holiday or on a day when the relevant public office was closed for the entire day, section 17 was to be construed as requiring the delivery of the relevant document to the court office itself on the following business day. Further, while the scope for departure from a 28-day time limit such as that in section 17 was extremely narrow, a person was entitled to serve notice at the last possible moment and the relevant period was not to be cut down by bringing it forward. In the present case, the time limit would have been brought forward by three days and, therefore, the employer had been entitled to file its appellant’s notice on the day after the bank holiday. Moreover, the employer had done all it could to issue the appeal in time and the county court’s error constituted exceptional circumstances justifying an extension of time and the judge was wrong to determine otherwise (paras 27, 36, 38, 41, 45, 46).

Pritam Kaur v S Russell & Sons Ltd   [1973]  QB  336, CA applied.

Van Aken v Camden London Borough Council   [2003]  1  WLR  684, CA, Mucelli v Government of Albania   [2009]  1  WLR  276, HL(E) and Adesina v Nursing and Midwifery Council   [2013]  1  WLR  3156, CA considered…”.

http://cases.iclr.co.uk/Subscr/search.aspx?path=WLR+Dailies%2Fwlrd2016%2Fwlrd2016-621

Court of appeal grants permission to appeal in second appeal

Bankruptcy, Commercial and Chancery, Commercial and Chancery litigation, Insolvency, , , ,

Insolvency – Bankruptcy- defrayment of judgment debt – nature of legal test – second appeal – stay of execution

Arfan Khan successfully represented the appellant after taking over the case on appeal in the Court of Appeal.

The appellant applied to vary a judgment debt to pay by way of affordable instalments. That application was heard in the County Court at Central London under CPR r 40.9A. The District Judge allowed the application, ordering the debt to be defrayed at an affordable rate, on the basis that it was reasonable and proportionate to do so.

The respondent appealed to the Circuit Judge, contending, amongst other points, that the District judge applied the wrong test, and the test was whether exceptional circumstances were present. The respondent relied on the case of Ameslam [2008] EWHC 3226 (TCC), contending that the creditors right to present a bankruptcy petition was prejudiced as a result of the decision to defray. The Circuit Judge allowed the appeal.

The appellant appealed to the Court of Appeal and sought a stay of execution pending the outcome of appeal. Prior to the receipt of the appellant’s skeleton argument, the respondent, through written submissions from Counsel, objected to the grant of permission to appeal on the ground that the second appeal test was not met.

The appellant’s skeleton argument argued that the test for the grant of a second appeal was met. There was a point of general public importance arising on this appeal: what is the applicable test to determine a debtor’s application to vary payment of a judgment debt under CPR r 40.9A? Alternatively, for a number of reasons, there was some other compelling reason why the appeal ought to be heard.

It was argued that the case of Ameslam, relied upon by the respondent, was not on point. It concerned CPR r 40.11 and not CPR r 40.9A. Amaslem was in any event distinguishable. The appellant contended that CPR r 40.9A contains a broad discretion. That discretion was aimed at avoiding bankruptcy in appropriate cases where the judgement debt can be paid by way of instalments.

It was argued in the appellant’s skeleton that this was consistent with the policy rationale behind bankruptcy legislation, which is to release individuals from debt, so as to permit a fresh start by increasing the circumstances in which any remaining debt (actual or contingent) is provable in the bankruptcy. The appellant relied on the decision of Richards J (as his Lordship then was) in Re T & N [2006] 1 WLR 1728.

The appellant contended that this analysis was consistent with the provenance of Rule 40.9A, which confirmed the correctness of the District Judge’s judgment. The right to present a bankruptcy petition was not prejudiced because the respondent could apply to vary the District Judge’s order at any time under CPR r 40.9A (15). In any event, that right was not absolute because a bankruptcy order itself could be rescinded or varied.

In the alternative, it was argued in the appellant’s skeleton that, even if the test was of exceptional circumstances, that test was met on the facts. The Circuit Judge erred in holding otherwise.

Lady Justice Arden granted permission to appeal on the papers on the basis that “Compliance with conditions for second appeal and requirement for arguability” was “shown by the appellant’s skeleton argument”. Her Ladyship also granted a stay of execution.

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Arfan Khan leads appeal in the Court of Appeal

Commercial and Chancery litigation,

Arfan Khan leads appeal of general public importance in the Court of Appeal

Statutory limitation periods – principle and practice

Arfan Khan is instructed as lead Counsel in the Court of Appeal following the grant of permission to appeal by the Court of Appeal on the papers. The appeal concerns the correct approach to the computation of a limitation period under statute. Lady Justice Arden held that sufficient prospects of success were shown by the Appellant’s skeleton, and that the calculation of time for the purposes of an enactment was “clearly an important point of principle and practice”.

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Bank’s High Court claim for £9.5 million settles out of Court

Banking and Finance, Chancery Litigation, Commercial and Chancery litigation

Bank’s High Court claim for £9.5 plus interest settles out of Court

Contract of guarantee – limitation periods – demands

Arfan Khan successfully defended complex claims in the High Court Chancery Division. The claims were pursued by a bank against the Defendants for £9.5 million plus interest, including possession of land. A legal charge was procured by the bank to secure the alleged indebtedness.

The bank issued a demand for the monies in 2003. In 2014, the bank issued claims for both a money judgment and possession orders in relation to three separate plots of land. By 2015, the alleged debt was claimed to stand at £9.5 million plus interest.

The bank through Counsel, and its legal team, contended that, whilst the claim had been issued in 2014, time started to run from the date of the demand in 2003 because the relevant documents expressed the liability to be repayable on demand. The bank contended that a limitation period of 12 years applied and, therefore, the bank’s claim for the money judgment and possession were in time.

The guarantees and the charge, however, contained a primary debtor clause, which guaranteed the alleged indebtedness as a primary debtor, rather than as a surety only. The Defendants contended that there was a distinction between an ordinary contract of surety in relation to which a demand was necessary before the indebtedness could be claimed, and a contract containing a primary debtor clause. The Defendants contended that, where there is a primary debtor clause in a guarantee, rendering the surety also a primary debtor, there is no need for a demand, even where the indebtedness is expressed to be repayable on demand: MS Fashions Ltd v Bank of Credit and Commerce International SA [1993] Ch 425; TS & S Global Ltd v John Fithian Franks [2007] EWHC 1401.

The reasoning behind this appears to be that the character of the agreement to pay is no longer a collateral one, but an agreement to pay a present debt for which a demand is not a condition precedent: TS & S Global Ltd v John Fithian Franks [2007] EWHC 1401 at para [18].

Accordingly, the Defendants argued that a demand was not necessary. It was argued, therefore, that time started to run from the date of the breach in 2001 rather than from the date of the demand in 2003. That being so, the Defendants contended that the 2014 claims for a money judgment and possession of land were time barred.

In any event, the Defendants contended that the bank’s claim for continuously accruing interest in excess of £5 million attracted a six-year limitation period and was time barred. The bank could only claim continuous interest limited to the last years rather than from the date of the demand.

In respect of the possession claim, it was contended that the limitation period of 12 years started to run from the date of the breach in 2001. This was so irrespective of whether or not the bank unequivocally demanded possession at that date or forbore from doing so. The Defendants relied on Ash v National Westminster Bank [2007] 2 P & C.R. 27.

The Defendants also argued that the bank could not, in any event, seek possession of the land because there were agricultural tenancies in place within the meaning of s.1 and 2 of the Agricultural Holdings Act 1986.

The Defendants issued applications for strike out and summary judgment which were listed to be heard on the morning of a four-day trial.

The bank subsequently abandoned its interest claim falling outside the six-year limitation period, and on the morning of the trial, after the exchange of skeleton arguments, settled.

 

Court of Appeal grants permission to appeal in default judgment case

Commercial and Chancery, Default Judgment - Practice & Procedure, Practice and Procedure, , ,

Default judgment –  Practice and Procedure

The Court of Appeal grants permission to appeal in a case of general public importance involving the practice and procedure surrounding default judgments.

The Claimant issued a claim against the Defendant for unpaid monies following the completion of construction works. The Defendant filed an Amended Defence and Counterclaim alleging that the works were defective and counterclaimed for damages. The Claimant served witness statement evidence denying the damages claimed, but not a formally pleaded defence to the counterclaim.

At trial in the Central London County Court, where the Appellant was represented by alternative Counsel, the Defendant contended that the Claimant had not filed a defence, and that the Defendant was entitled to default judgment. The Circuit Judge proceeded to grant default judgment on the basis that the Claimant had failed to file a formally pleaded defence.

The Appellant appealed to the Court of Appeal. The Appellant argued that there was a point of general public importance arising on the appeal, namely whether, in the absence of a formally pleaded defence, a witness statement denying damages claimed in the counterclaim constitutes “a defence” for the purposes of default judgment under CPR r 12. 3 2 (b). This was argued in conjunction with para 1.1 of Practice Direction 12 which states that a defence includes “any document purporting to be a defence”.

Lord Justice Christopher Clarke was persuaded to grant permission to appeal on the basis that the point was of general public importance, raising a point of practice or procedure, in respect to which the Appellant had real prospects of success. His Lordship allowed the appeal to proceed on the condition that the Appellant pay the outstanding interim costs order which the Appellant agreed to do.

Arfan Khan was instructed as lead Counsel on appeal and did not appear in the proceedings below.

The transcript of judgment will be available soon.

Chancery litigation in Construction Dispute

Chancery Litigation, , , , , , ,

Peak Construction (London) Ltd v Savva & Anor  [2016] EWHC 1295 (Ch)

Mrs Justice Asplin, sitting in the Chancery Division, delivered judgment in the above litigation. The case concerned three interlocutory applications. Two of these applications raised difficult issues, including an application for an extension of time to file a defence where non-compliance with a freezing injunction was alleged. The application raised multiple issues concerning adjournments; extensions of time; bank statements; compliance; costs; default judgments; penal notices; time limits; and unless orders. The Court granted the Applicant an extension of time to file a defence. Arfan Khan appeared for the Applicant who was granted the extensions.

The judgment can be viewed through the following link: http://www.bailii.org/ew/cases/EWHC/Ch/2016/1295.html

Click here: Peak Construction (decision)

 

Freezing Injunction granted by the Chancery Division

Commercial and Chancery, Commercial and International Law, Company, Insolvency

Freezing Injunction granted by the Chancery Division in a £1.25 million claim

Mr Justice Warren granted one of the world’s largest multi-national data telecommunications company a freezing injunction. The freezing injunction was granted against multiple  companies and their directors in a £1.25 million claim. The claim involves alleged transactions defrauding creditors, contrary to s.423 and s.424 of the Insolvency Act 1986. The freezing injunction was initially granted urgently on a without notice basis, and then continued at an on notice hearing. Arfan Khan, instructed by a City Law firm, appeared for the successful Applicant at both hearings and is instructed in the claim by the same firm. The case is ongoing.

Arfan Khan awarded Banking & Finance Barrister of the Year 2016 in the Corporate Livewire Global Awards

Banking and Finance

Arfan Khan awarded Banking & Finance Barrister of the Year 2016 in the Corporate Livewire Global Awards

Arfan Khan awarded Banking & Finance Barrister of the Year 2016 in the Corporate Livewire Global Awards. The Corporate Livewire Global Awards recognise “outstanding performances” of individuals and companies who have demonstrated “excellence” over the past 12 months. The Awards are awarded strictly on merit on a no cost basis. Further information can be found through the following link http://www.corporatelivewire.com/awards.html?award=89. In so far as material, this states:

“The 2016 Global Awards Guide showcases the achievements of the most successful and ground-breaking individuals and companies of the last 12 months. Those who have achieved something special in the fast moving corporate finance arena…

We have also developed our processes in nomination and selection, ensuring that those we award meet high and strict standards of compliance and ethical business practises.

Our past winners have included global companies such as PwC, UBS, Clifford Chance, E&Y and Morgan Stanley as well as national or regional companies from around the world who simply deserve the recognition.”

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