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NOV
16

“They haven’t paid, and now I think they are hiding their assets” A practical guide to Freezing Orders (Part 1) by Ian Coupland, Head of Commercial and Litigation at Lewis Nedas Law.

gavel 2It is everyone’s concern: you are owed a large sum of money, and the person or company who owes you the money (the debtor) seems to be putting their money offshore or hiding it away. Maybe they are selling their house. What if they transfer their money with a mouse-click and disappear? How will you be paid then?

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NOV
07

Siobhain Egan published in Corporate Live Wire - Article on the New Corporate offence established for failing to prevent the facilitation of tax evasion

Fraud imageSiobhain Egan has been published in Corporate Live Wire for their Fraud and White Collar Crime 2017 Experts Guide, explaining the New Corporate offence established for failing to prevent the facilitation of tax evasion.

Read the article here.

   

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OCT
31

New Debt Recovery Pre-action Protocol

debt recovery 1The first day of the new legal year introduced a new Pre-Action Protocol specifically formed to facilitate debt claims (‘the Protocol’). As of 1 October 2017, creditors must comply with the Protocol when claiming payment of a debt from a debtor, failure to do so is likely to result in cost sanctions.


Preceding Position

Due to the time and expense of court action it is commonplace that the issuing of court proceedings is used as a last resort in an attempt to settle disputes. The Civil Procedure Rules provide a number of protocols which highlight Alternative Dispute Resolution (ADR) ideas. 

Before the Protocol came into force, there was no specific standing on Pre-Action Protocol for debt claims. Parties were, however, expected to observe the existing Practice Direction for Pre-Action Conduct.


When will the Protocol apply and to whom?

The new Protocol applies to any business (in limited form, partnerships, sole traders and public bodies) claiming payment of a debt from an individual (also includes a sole trader).  The business is referred to as the creditor and the individual is referred to as the debtor.

Put simply, the protocol details the particular conduct the court will expect of the parties prior to the start of proceedings. One distinct feature of the Protocol is the new Information Sheet and Reply Form which must be provided to the debtors in all cases. The Protocol was initiated to complement any regulatory regime to which the creditor is subject – if compliance with this Protocol is incompatible with a specific regulatory obligation, that regulatory obligation will take precedence.

In summary, the Protocol does not apply:

- To business-to-business debts unless the debtor is a sole trader;

- Where the debt is covered by another pre-action protocol such as construction and engineering or mortgage arrears;

- To claims issued by HM Revenue and Customs that are governed by Practice Direction 7D (Claims for the Recovery of Taxes and Duties)


Aims of the Protocol

  1. To encourage  early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute;

  2. Enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure;

  3. Encourage the parties to act in a reasonable and proportionate manner in all dealings with one another;

  4. Support the efficient management of proceedings that cannot be avoided.

 
The Process

The process begins with the creditor who should:

  1. Send to the debtor a letter of claim before proceedings are commenced. The Letter of Claim must contain certain information, formatted and sent in such as way as the Protocol directs. If the debtor does not respond to the Letter of Claim within 30 days of the date of the letter, the creditor may start court proceedings.

  2. Do one of the following:

       i) enclose an up-to date statement of account for the debt (including details of any interest and administrative or other charges added); or

       ii) enclose the most recent statement of account for the debt and state in the letter of claim the amount of interest incurred and any administrative or other charges imposed since the statement of account was issued, sufficient to bring it up to date; or

       iii) where no statements have been provided for the debt, state in the letter of claim the amount of interest incurred and any administrative or other charges imposed since the debt was incurred.

  3. Enclose a copy of the Information Sheet and the Reply Form; and

  4. Enclose a financial statement form

 

If the debtors wish to respond they should:

 

  1. Use the Reply Form for their response and request copies of any documents they wish to see and enclose copies of any documents they consider relevant.

  2. If debtor indicates that they are seeking debt advice, creditor must allow the debtor a reasonable period for the advice to be obtained. The creditor should not start court proceedings less than 30 days from receipt of the completed Reply Form or 30 days from the creditor providing any documents requested by the debtor, whichever is the later.

  3. If the debtor indicates in the Reply Form that they are seeking advice that cannot be obtained within 30 days of their reply, the debtor must provide details to the creditor as specified in the Reply For. The creditor should allow reasonable extra time for the debtor to obtain that advice where it would be reasonable to do so in the circumstances.

  4. If the debtor needs time to pay, the creditor and debtor are required to attempt to reach agreement for the debt to be paid by instalments, based on the debtor’s income and expenditure. If the creditor does not agree to the debtor’s proposal for repayment, they should give the debtor reasons in writing.

  5. It is worth noting that a partially completed or blank Reply Form should be taken by the creditor as an attempt by the debtor to engage with the matter. It if for the creditor to contact the debtor to discuss the Reply Form and obtain further information to fully understand the debtor’s position.

After all of this and disclosure of requested documents and a settlement cannot be reached, the parties are encouraged to resolve the dispute with the use of ADR, without commencing court proceedings. However, if an agreement still cannot be reached the creditor must give the debtor no less than 14 days’ notice of its intention to issue court proceedings (unless the limitation period is about to expire).


Compliance

If the matter turns litigious, the court will expect the parties to have complied with the Protocol. Non-compliance of such will be taken into consideration when giving directions for the management of further proceedings. Failure to comply with the Protocol may have a severe impact on the creditor and result in:

  1. Further delays in collection of debts if any legal proceedings are stayed to remedy non-compliance with the Protocol;

  2. Additional cost sanctions in regards of payment of the debtor’s legal costs or a failure to cover costs; and

  3. Inability to recover interest from a debtor or recovery at a reduced rate


What does this mean for creditors?

None of the above is good news for creditors. It is clear that the Protocol has increased the onus on businesses in the recovery of debt. In essence the new Protocol will bring about burdensome responsibilities on creditors when the process for recovery of debts comes about.

The additional time and effort demanded by the new Pre-Action Protocol for debt claims requires, from the creditor, a greater degree of diligence and forbearance when recovering outstanding debts. It is an agreeable suggestion to take independent legal advice to safeguard against such repercussions mentioned in this article.


In Summary

Notwithstanding earlier controversies, the Protocol will aid in both the resolution of individual claims between creditors and debtors without litigation and contribute in some way to reducing the civil court claims comprising largely of debt claims against individuals.

In reflection of these changes, if you require any additional information in relation to the implementation of the new Pre-Action Protocol or require any legal assistance please do contact Lewis Nedas for further guidance and advice.

 

Article by Tia Lim-Watts of Lewis Nedas Commericial and Litigation Department.

  

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OCT
31

Sexual Harassment allegations - Post Fox News and Weinstein - Some advice..

houses parliament nw080609 2Without a doubt the recent allegations against both Fox News/their employees, and Mr Weinstein, represent a complete watershed in this area of law.

Victims of sexual harassment have become quickly emboldened, supported by campaigns in both social media and the press (see the FTs campaign within the City and finance sector), and are speaking up.

Accusations are coming through quickly and affect every profession, industry, sector, class, gender and community, even Parliament.

 

The Legal definition

The Equality Act 2010 defines sexual harassment (which is considered to be a form of discrimination) as ‘all unwarranted conduct of a sexual nature or related to sex, which has the purpose or the effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment‘.

It is a very wide statutory definition, it covers demands for sexual favours (for promotion or increased salary) touching, sexual assault or bawdy jokes/banter. It applies to a ‘one off’ incident as well as to a course of conduct. It does not have to be aimed at one specific individual, but can cover somebody who overhears the conversation or sees the text/email/physical contact.

Some professions, and the Law is amongst them, favour the ‘lads only‘ approach to client entertainment, or suggest to an employee that they dress ‘particularly attractively‘ or 'flirt', to secure an important client. Certainly, this type of behaviour is rife within the commerce, finance and entertainment business and falls squarely within the definition of sexual harassment.

We are regularly consulted by employers, their HR teams, victims of sexual harassment and those facing such allegations, seeking legal advice.

Let’s take each group separately:

 

 The Employer/HR personnel

Please understand that Employment Tribunals regard these allegations very seriously and can award large sums as compensation.

Not only may the company end up in an employment tribunal, but perhaps Court.

All employers have an implied duty under the contract of employment to provide a safe, appropriate working environment and to ‘provide redress of grievance‘, failure to do this could result in litigation citing breach of contract, with large damages at stake.

Accept that company cultural change starts at board level, and that change has to be assertively enforced.

Remember also, that the reputation of the company is at stake, so act quickly when the complaint is received.
So, no silly jokes from Management/staff, about how they cannot get away with saying that sort of thing nowadays - the public reaction to thoughtless comments made by certain politicians and entertainers should make it clear that such thinking is now socially unacceptable.

Get your bullying and harassment policies and procedures up to date and have a separate written policy on sexual harassment.

Ensure that every employee and Manager has regular training in this field (it’s a particularly fast moving area of law, and not one to underestimate).

Personnel who are either making the allegations or who are the subject of them, need to know who to turn to, that both sides will receive a fair hearing and the investigation of the allegations will be thorough and fair.

Document every meeting and conversation (remember they may end up being scrutinised in a legal tribunal of one type or another).

The investigations themselves can be quite complex and delicate- the harassment can often be conducted quite subtlety and discreetly. It can also just boil down to one person’s word against another’s.

Both sides have to feel that they are being handled sensitively and impartially, and they have the right to see the allegations, evidence and to respond.

Analyse the allegation and evidence carefully- were they made during working hours on working premises? In the course of the employees duties? Were the emails/texts/tweets made on the firm’s equipment? Are there Data Protection Act consequences to be considered? Does the allegation involve a third party/supplier /sub- contractor (again this area is very fast moving) as Barclays discovered earlier this year, to their cost (they were held liable in the High Court, for the actions of a GP instructed by them, as a third party, to assess the potential employees).

Be very wary of Non Disclosure Agreements - lawyers love them, the public and press do not.

In any event and despite the possibility of draconian consequences if the NDA is breached, as we have recently seen, some victims/complainants have breached them, confident that a company or employer would seriously assess the consequences and the possible, further reputational damage of suing for such a breach.

Employers can no longer just decide to separate the personnel involved, for example move them to a different office, and hope that will suffice. A sensitive, fair, balanced and pro active approach is now required from employers and their HR teams. If in any doubt, contact an experienced lawyer.

 

The Victim/Complainant

Research undertaken by both the BBC and trade union organisations recently, shows that sexual harassment is pandemic, and that the vast majority of those who have been subject to such harassment, do not complain about it. Most just grit their teeth, smile or even join in, terrified for their jobs and promotion.

The tribunals and courts understand this reaction, particularly when it involves (young) women and men or where English is not the first language.

Firstly, tell somebody - a friend/another colleague/Manager/your union/professional association/Citizens Advice Bureau.

Write all that happened down - preferably as soon as possible after the incident.

Collate as much evidence as you possibly can; every note/email/text/tweet/record of telephone calls/telephone messages. Keep this evidence as safely as you can and in clear, strict chronological order.

See if there are any witnesses to the events/comments- note who was around when the incident happened.

Think about building a strong case to submit with your complaint to your employers. Do not be afraid to speak up to your employer, you may find that you are not the only employee to make such an allegation against a certain employee(s) and co-workers.

Remember, that ordinarily you will have to originate proceedings with the employment tribunal within three months of the allegation. Not every employee is going to be able to afford a lawyer, however some lawyers will assist on a fixed fee basis.

 

The Accused co-worker/employer/employee

We have been consulted by a number of individuals/companies from the professions, commerce and entertainment worlds, in particular about the possible legal consequences of sexual harassment allegations in the wake of the afore mentioned American scandals.

These include concerns about the possibility of criminal proceedings, reputational management, professional disciplinary proceedings, civil actions and financial penalties.

Additionally, a number have found themselves falsely accused of sexual harassment and are simply terrified of the consequences upon their careers, finances and relationships.

We advise and represent these people and assist them to defend themselves.

 

How we, at Lewis Nedas Law, can help you

Unusually amongst law firms in England and Wales, we have not only expert specialist employment and discrimination lawyers, but can also call upon our team of highly regarded expert criminal lawyers who can advise not only upon potential criminal proceedings, but also reputational management.

Years of successfully defending sexual allegations, gives us unique insight into the assessment of the evidential value of these allegations of sexual harassment.

We know how to prepare cases and to defend these types of allegations. We can advise upon employment policies and compliance in this field.

We understand the consequences for employees, employers and professionals, in particular those from HR, commerce, the City, finance, sporting and entertainment worlds, having advised and represented these types of individuals and companies for decades.

We do so efficiently and discreetly, instructing the best specialist barristers and experts at reasonable realistic fee levels.

 

If you require advice, assistance or representation about any of the issues discussed in this article, contact us on 02073872032 or use our enquiry facility at www.lewisnedas.co.uk.

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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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