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SEP
07

More planned changes for POCA (Proceeds of Crime Act), asset restraint and confiscation proceedings

confiscationThe Home Affairs Parliamentary Committee concluded in July 2017, that Government and prosecution authorities are simply not doing enough to secure the proceeds of crime, from those convicted of crimes, and those who have managed to evade prosecution.

Focusing upon those convicted of criminal offences, over £1.61 billion remains outstanding from Confiscation orders made by the Courts, albeit 1/3 of that sum represents penalties and interest for non payment of those orders. As a result, The Law Commission has turned his attention to the issue and will report in October 2017.

In truth, the SFO and FCA have a much better record as far as recouping the proceeds of crime are concerned, certainly better than police forces, CPS and the NCA, that is probably because they have relatively well resourced specialist teams of lawyers and financial investigators.

Another possible explanation is that those convicted of financial crime and fraud often have easily identifiable assets, when compared with those convicted of drugs or people trafficking offences.

There have been substantial changes to the POCA regime, as embodied within this years Criminal Finances Act 2017 re Sar reports and Unexplained Wealth Orders (please see our blog: Unexplained Wealth Orders : a new tool for seizing proceeds of crime 12/4 2017 – newsroom section on our website).

The CFA 2017 brings in new disclosure orders including the requirement of a third party to disclose information as required and amendments to SAR regime.

All POCA regulated firms can now share information with other such regulated firms where there is a suspicion of money laundering.

The NCA will now be able to extend the moratorium period to six months and the Magnitsky Clause within the CFA allows non–conviction recovery powers to include assets obtained by a gross abuse of human rights.

Additionally, The Home Office and The Attorney Generals Office have just closed a consultation on 25/09/2017 which will focus upon the following discreet areas:

  1. Powers to search, seize, and detain property
  2. Exercising investigation powers under POCA 2002
  3. Using search powers to recover criminal cash
  4. Powers to seize identifiable listed assets
  5. Prosecutors guidance on the operation of POCA investigation powers
  6. Exercise of various new seizure, detention and forfeiture powers under the CFA 2017 (Criminal Finances Act)

The FCA is also considering criminally prosecuting firms/individuals for anti money laundering failings – see their business plan for 2017/2018.

They are keen to also establish 0PBAS (Office for Professional Body AML Supervisors), which will oversee (and enforce) obligations under new AML Regulations.

 

How can we help you?

We have one of the leading specialist POCA defence teams in the Country; we advise those facing POCA proceedings and those immediately affected by such orders e.g. third parties, business partners and co Directors.

Our team includes specialist White Collar/Corporate Crime defence teams, highly ranked by the leading Legal ranking directories and are  highly experienced when dealing with these proceedings, including AML, taxation, bribery and corruption, market offences, and have a genuinely in depth knowledge of Prosecution agencies policies and behaviour.

A number of other firms of lawyers have Dispute Resolution Departments comprising of corporate litigators and young barristers that deal with this field and are relative newcomers to this area of law. Not us, we have been dealing with these issues since the enactment of POCA 2002 and believe in early pro active defence, an approach which has proved to be very successful.

Please contact our asset confiscation team on 02073872032 or use our online enquiry facility at www.lewisnedas.co.uk

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SEP
05

Abolition of Employment Tribunal fees: what is it likely to mean for employers and employees alike?

The Supreme Court decision in R (on application of Unison) v Lord Chancellor (2017) UK SC 51 (26/07/2017) ruled unanimously that the Employment Tribunal fees brought in by government in 2013 are unlawful, deny the fundamental right of access to justice and contrary to both common and EU law. Additionally, the Supreme Court also ruled that these fees discriminate against women.

Unison persisted with their claim despite numerous rejections and set backs from the lower courts.

This has to be one of the most momentous recent decisions in Employment law and the ramifications of this ruling are going to be enormous and complex.

The number of claims in the Employment Tribunal dropped from 7,000 to 1,000 (a reduction of nearly 70%) after the imposition of those fees, and it's highly unlikely that future numbers of claims will reach 7,000 again. This is largely because of the mandatory ACAC early conciliation process.

Apparently, government are considering whether or not to reintroduce fees at lower levels and in a lawful manner, but even if they decide to do this it will take a great deal of time.

In the first instance, the most likely effect is to cause further strain and delays within the severely underfunded Employment Tribunal system.

Fees paid by claimants since 2013 will fave to be refunded, and those employers who settled or paid compensation (including the tribunal fee element) will also have to be refunded.

It may be possible for employees now to bring claims out if time, but this very much depends upon the type of claim (i.e. unfair dismissal or discrimination). Each of these claims have individual tests that must be satisfied, e.g. Whether it was 'not reasonably practicable' or if it is 'just and equitable' to bring a claim, respectively.

This could lead to huge difficulties for those seeking to bring or defend older claims, particularly if documentation and records have been destroyed or lost.

The Employment Tribunal has made a recent case management order dealing with the consequences of this Supreme Court ruling:

1) The stay on those claims relying upon this judegement is to be lifted immediately;

2) Reimbursement of fees are to be made, following administrative arrangements made by both the MOJ and HMCTS;

3) Reinstatement of claims rejected on the basis of non payment of fees shall be made pursuant to administrative arrangements produced by the MOJ and HMCTS;

4) Remainder of claims brought upon reliance of the Unison judgement should be brought in the usual way to the regional Employment Judge for each ET region.

 

If as an employer, GC, HR professional or employee, you require advice on any of this information or any aspect of employment law, contact our highly skilled and experienced specialist lawyers.

Call us on 0207 387 2032 or use our enquiry facility on www.lewisnedas.co.uk.

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MAY
30

POST-BREXIT BRITAIN GOVERNED BY ENGLISH LAW

eu post brexit lawSeveral EU initiatives have harmonised the cross-border litigation rules applicable across the European Union. But what will happen to these rules post-Brexit? And how will the UK adapt its own rules to meet a post-Brexit Britain?

CHOOSING THE ENGLISH COURTS

Currently, enacted EU law provides that the choice between parties to litigate in the English courts is valid and effective (Article 25 recast Judgments Regulations). The ability to extend this choice to non-contractual relationships between parties also helps to promote a ‘one stop shop’ for all parties’ litigation needs to be heard by the English courts.

However, this freedom for parties’ to litigation to choose the English courts is currently heavily restricted in relation to consumer, insurance and employment contracts. In respect of such contracts, any judgment obtained in the court of another member state must be upheld even if this is in direct breach of an English jurisdiction clause, specifying that the English courts were to be used. Therefore, initially it appears beneficial post-Brexit for no arrangement to be made of these restrictions, as these restrictions would not necessarily apply if the UK reverted entirely to its pre-EU common law position.

Alternative positions may be considered, below.

ALTERNATIVE ARRANGEMENTS POST-BREXIT

CHOICE OF JURISDICTION CLAUSE

Given the certainty of Article 25 (above), an agreement could be reached with EU Member States to continue to apply these recast Judgments Regulations to relations between the UK and member states.

However, in the alternative an agreement between the UK and EU Member States could also be sought to extend the Lugano Convention (which is applicable to Norway, Switzerland and Iceland as well as EU Member States). The Convention is similar to the Judgments Regulation, save for the court having discretion and first refusal as to whether to accept jurisdiction where neither party is domiciled in the contracting state (i.e. in the UK). Further, if parties opt not to issue litigation in the English courts, the English court cannot intervene or retrain these proceedings and cannot question any jurisdictional clause, deeming it to be ‘null and void’. This would provide parties to litigation with wider autonomy in the event of a dispute, especially when not located in close proximity of the UK.

Further still, in anticipation of Brexit, the UK could ratify the Hague Choice of Court Convention 2005 whereby the English courts must accept jurisdiction in cases where there is an English ‘exclusive jurisdiction clause’ (unless under Article 5 of the 2005 Convention, that clause is in fact null and void under its law). Under the 2005 Convention, courts of other contracting Members States must also give effect to an English exclusive jurisdiction clause and decline their own jurisdiction under Article 6. Beneficially therefore, English court judgments will be enforceable in all Members States.

Again the above alternatives do not apply to consumer or employment contracts and further consideration may be required in respect of these contracts as well as non-exclusive jurisdiction clauses.

NON-EXCLUSIVE JURISDICTION CLAUSES AND ASYMMETRIC CLAUSES

Although the legal basis may be different, there are strong grounds to anticipate that the English courts will also robustly uphold non-exclusive and asymmetric jurisdiction clauses. However, there is more doubt as to whether the courts of Members States will uphold English jurisdiction clauses in the absence of an applicable international instrument post-Brexit. This remains to be seen. 

CONTRACTUAL OBLIGATIONS

The Rome I Regulation currently upholds the parties’ choice of English law to govern their contractual relationship throughout the European Union. However (as above) it also restricts consumer, employment and insurance contracts involvement.

Even if no Brexit agreement is reached to continue to apply Rome I Regulation, arguably the UK could continue to apply it by enacting it into domestic law. This is because the Rome I Regulation is not reciprocal by EU Member States. Thereafter other Member States will continue to apply the Regulation and give effect to an English choice of law clause, regardless of where parties are domiciled. In this event, the pre-Brexit position will effectively remain unchanged. 

BACK TO COMMON LAW

If however the above named Rome I Regulations, the recast Judgments Regulations and/or any other EU instrument currently in place will not apply post-Brexit, English common law rules will revive to determine contractual governing laws and choice of jurisdiction clauses. Common law too permit the parties to choose their governing law (Vita Food Products Inc v Unus Shipping Co), and in fact is far less restrictive as there are no specific restrictions in respect of consumer, employment and insurance contracts at common law.

However, there is real doubt that a clause in respect of non-contractual obligations between parties will be effective in the English courts. For example, in respect of torts, common law (s.11 Private International Law (Misc Provisions) Act 1995, Pt III) would revive and does not allow parties to choose their governing law. Very occasionally a choice of governing law may be displaced if it is substantially more appropriate for determining the issues arising in the litigation, but a direct choice of English law is not generally permissible under the 1995 Act - which may pose a problem post-Brexit.

CONCLUSION

Whilst it is impossible to know exactly what might happen to this area of law after Brexit, there is strong optimism that that exclusive jurisdiction clauses and contractual agreements in favour of the English courts are likely to continue to be effective in England.

The position in respect of non-exclusive and asymmetric jurisdiction clauses is a little less clear however, and together with the position on non-contractual relationships, is yet to be seen!

 

By Annabelle Pantling

Solicior in the Litigation & Commercial Department

 

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MAY
25

Commercial and Litigation Department; May 2017

london solicitorsTo all our commercial clients and prospective commercial clients,

April is always a busy month in the legal world, as Bills receive Royal Assent to become Acts of Parliament, and this year was no different as twenty new Acts came into force, making a total of thirty in 2017 so far. In addition, what would appear to be the last Spring budget for the foreseeable future has meant that both companies and individuals alike will no doubt be feeling the effects of these new socio-political/socio-economic changes fairly soon, and with an election just around the corner and Brexit negotiations becoming a “brutal reality” (according to The Economist), who knows what the future holds!

At Lewis Nedas Law we always strive to stay on top of our game, and now that some of these changes have started to come into effect, we thought that now would be the time to give a little snapshot of just some of the areas that we know about that might interest you. We’ve also thrown in some recent cases for good measure.

 

Employment

1) Statutory payments

From April 2017:

  1. Family; the weekly rate for statutory maternity, paternity and shared parental pay has increased to £140.98 from 2 April 2017 onwards.
  2. Statutory Sick Pay (SSP); has increased to £89.35.
  3. Statutory Redundancy Pay (SRP); For the purposes of calculating a redundancy payment (age, weekly pay, length of service), 'weekly pay' has increased to £489.00.

 

2) Employment Tribunal Cases

The Employment Appeal Tribunal has held that a second ACAS “early conciliation certificate” (EC) issued for the same matter as the first will not extend a claimant's time limit for instituting tribunal proceedings (Commissioners for HM Revenue and Customs v Serra Garau UKEAT/0348/16).

 

3) Employer requirements:

All organisations with a headcount of 250 or more must publish annual figures about its “gender pay gap”, which means the difference between the average earnings (including bonuses) of men and women.

In addition, The Pensions Regulator (TPR) has just issued a penalty of £40,000 against an employer for failing to comply with automatic enrolment. It is also threatening criminal prosecutions against employers and has started a “name and shame” campaign. Employers are therefore strongly advised to check their compliance in relation to pension schemes.

 

Corporate and Commercial

Commercial contracts

1) In Wood v Capita Insurance Services Limited, the Supreme Court has clarified the correct approach to be taken when interpreting commercial contracts and finding a balance between “textual analysis” and “commercial good sense” (as per the tests in Arnold v Britton and Sky v Kookmin Bank respectively).

The correct interpretation will depend on a range of factors, such as:

  1. words used in the contract;
  2. the context in which the words are used;
  3. business commercial sense.

The Supreme Court also added in its judgement that it is “not for the court to remedy a bad bargain” and that the tools for interpretation listed at a) - c) will be used depending on the facts of the case.

 

Corporate considerations

2.We posted an article last year about the PSC (Persons with Significant Control) regime affecting companies in the UK.  In light of the crackdown on organised financial crime, the Government has posted new information on the changes to be made in respect of UK money-laundering measures to help prevent money-laundering and terrorist financing.  The legislation, effective 26 June 2017, will change the current requirements concerning PSC information to be registered at Companies House and can be found here: https://www.gov.uk/government/news/changes-to-uk-anti-money-laundering-measures.

 

Judgements

3. In the High Court, only 35 judgments have been registered against consumers 2017, which is the lowest total number for a single quarter since records began. The average value of a High Court Judgment against a consumer also fell 44 percent year on year to £446,308. 

Comparatively, County Court judgments (CCJs) are on the rise, with 298,901 debt judgments registered against consumers in England and Wales in 2017 (an increase of 35%). This is the highest figure for a single quarter in over a decade. This means that, for every 1,000 consumers in the UK, 5.16 now have a CCJ against their name, as opposed to 3.85 in 2016.

Does this mean that consumers and businesses are not being deterred by rising court fees, or is there another reason for the dramatic change in these figures? Watch this space…

Source: The Registry Trust Limited

 

Professional Negligence and Litigation

Professionals: breathe a (small) sigh of relief when dealing with impulsive clients

1. In a classic example of the UK Legal System Hierarchy at work, the Supreme Court has upheld the Court of Appeal’s decision to overturn a lower court judge in BPE Solicitors and another (Respondents) v Hughes-Holland (in substitution for Gabriel) (Appellant) [2017] UKSC 21 on appeal from [2013] EWCA Civ 1513.  A link to the judgment can be found at the following address: https://www.supremecourt.uk/cases/docs/uksc-2014-0026a-press-summary.pdf.

In summary, the highest court in the land found that a professional advisor cannot be liable for a person’s poor commercial decisions.  We hope that this gives some reassurance to our professional clients!

 

 

Blog by Adam Creasey, Associate Solicitor.

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MAY
09

The Digital Economy Act 2017 has arrived!

cybercrimeThis very wide ranging (and much criticised) statute has finally been enacted. Amongst its many topics include; access to online pornography, government data sharing and a massive increase in the maximum sentences for Copyright Infringement Offences.

The latter has been of particular concern to FACT (Federation Against Copyright Theft), who have witnessed the popularity of KODI boxes, which are often used to download pirated films, movies, sporting events and box sets. 

Their view was found support in a European Court of Justice decision which recently held that Filmspeler, a website claiming to sell 'legal pre-configured IPTV devices' has in the Courts view, been in fact illegally downloading copyrighted protected material. FACT have several prosecutions concerning illegal streaming in the pipeline, focusing upon suppliers, retailers and importers. The 2017 act has now increased custodial sentences for these offences to a maximum of 10 years.

FACT have also been part of the long running Operation Creative, a joint operation with City of London Intellectual Property Act whose objective is to disrupt illegal streaming websites. The authorities are also focused upon the marked increase in illegal activity of organised criminal groups working in this area.

Online age verification in order to gain access to certain websites (primarily pornographic websites) also falls within the legislation. This development is as a result of pressure groups like the NSPCC intent upon protecting young people from the worst that these sites can offer.

One of the major concerns is that it is highly unlikely that adults will be willing to enter identifying data in order to access these sites and will resort to the 'dark web' in order access extreme porngraphy, for example.

The Act also includes the very wide and powerful provision, that regulators will be able to act against any site making prohibited material available on the internet to persons in the U.K. The British Board of Film Classification will have responsibility for this role, and will effectively become the Internet Censor.

 

If you are facing investigation or proceedings (civil or criminal) as a result of these issues, you will need genuinely experienced lawyers to defend you and or/your company. We have been successfully dealing with FACT prosecutions and the complete remit of cyber and internet offences for many years.

Please contact us on 02073872032 or use our online enquiry facility at www.lewisnedas.co.uk.

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