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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?


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.



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.


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. 


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. 


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.


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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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.



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:



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:

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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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

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Beware, a voluntary police interview is not a cosy chat with the authorities

police interviewThere has been a substantial culture shift by police since 2014, in particular, towards the use of voluntary interviews of suspects, rather than interviews under arrest, which are necessarily protected by the Police and Criminal Evidence Act 1984 (PACE). There are a number of reasons for the huge increase in the use of these voluntary interviews:

(1) The implementation of Code G of PACE on 12.11.12 which according to ACPO (The Association of Chief Police Officers), requires investigating officers to adopt a more considered approach to the necessity of arresting suspects;

(2) The hard hitting budgetary cuts suffered by the public services, including the police, which were previously cut to the bone are now cutting right through it, have persuaded police that a cheaper option to the costs of arrest and detention would be to focus upon the option of voluntary interviews instead.

It also means that if a particular investigation does not get funding for prosecution during one particular financial year, it can be rolled over onto the next without having to justify why the suspect is on bail for lengthy periods of time. Police are often waiting on forensic tests of computers and phones before they can make a charging decision. Terrorism and sexual abuse allegations take priority in these situations;

(3) The enormous criticism levelled at police when investigating hacking, sexual abuse and serious fraud investigations about the length of bail periods (see above), which attracted critical publicity when it involved individuals in the public eye. The then Home Secretary, Theresa May, was a very vocal critic of lengthy bail periods which led to a 2015 Home Office consultation on the subject;

(4) That Home Office consultation led to bail reform provisions within the Policing and Crime Act (in force as of 03.04.2017), more about these new bail provisions later.


What is a voluntary police interview and what are my rights?

  • Let's begin with what should and could happen; You receive a call at work or home from a police officer asking that you attend for a voluntary interview either at a specified police station, or even your home or work place.

  • You may panic and ask if you are in serious trouble, should you bring a solicitor with you? You should be advised why they are not arresting you at this stage, that you are entitled to free legal advice (as provided by Legal Aid police station representation). They must not interview you about the allegations/investigation outside the formal interview situation.

  • They should assess whether you are vulnerable and if you have any special requirements for interview such as an interpreter or appropriate adult. Perhaps you need need frequent breaks during interview or a hearing loop, for example.

  • Police should set out the purpose, aim and objectives of the interview and advise you that you can terminate an interview at any time.

  • You can ask for disclosure of information about the allegations and investigation, but that will only be provided to your lawyer. Please also note that there is no strict entitlement to such disclosure.

  • You should be told about the nature of the offence which they are investigating and that in order for the allegation to be investigated properly, you must be interviewed under caution.

  • They should say that arrest may not be necessary if you attend voluntarily, but if you fail to attend at the agreed time or decide to leave the voluntarily interview then they may arrest you.

  • They may also arrest you if new information comes to light, after they have made the initial voluntary arrangements.

  • The interview will be recorded, even if taken at home or at work.

  • You will be cautioned at the beginning of the interview and that will be repeated during the interview for various reasons.


What may you hear from police instead?

Many of our clients have been told the following:

''It's only a quick interview to hear your side of the story'' ..... ''If you insist upon a lawyer attending, it will take much longer and you are likely to be here all day'' ..... ''Why would you need a lawyer if you have nothing to hide?'' ..... ''We just want you to help us with our enquiries, we are completely impartial''.

We have had any number of clients, including professionals, who have been left with the very firm understanding and impression that police are considering them as potential prosecution witnesses before attending a voluntary interview, only to find themselves served with a summons to attend court as a defendant after the investigation has been completed.


What should you do if you are asked by police to voluntarily attend an interview with them?

  • Stop panicking and think clearly, find and instruct a good, genuinely experienced lawyer to assist you. An experienced solicitor will make contact with the officer and clarify the situation about the voluntary aspect of the interview, the agreed location and time. S/he will want to know from them why have they decided not to arrest, the nature of the allegations and ask for written disclosure in advance so that s/he can take instructions from you upon that disclosure.

  • They will assess if you have important issues to raise as part of your defence during interview (alibi/witnesses/emails/texts/documents), whether you have any special requirements and whether you should answer questions or draft a 'considered statement' as part of your defence.

  • They will explain the police caution and its significance. Only a genuinely experienced, specialist lawyer, with a proven track record, can fully assess the situation and advise upon it.

  • The police station interview is the cornerstone of any prosecution and defence, it is therefore vital that you are fully advised before and throughout the interview. It will be very difficult to undo any mistakes that you may make in interview concerning an important detail or aspect of your defence during trial, indeed you will be cross examined about any mistake that you may have made and it will be used against you.

Are there any advantages to a voluntary interview?

In truth there are not many advantages; you are unlikley to be placed in a police cell, if the investigation results in no further action you can answer any DBS check or a question about whether you have ever been arrested for a criminal offence, truthfully. This is very important for those who work in strictly regulated jobs or professions e.g. If you are FCA authorised. 

If the police decide you to arrest you wrongfully, once you have been offered a voluntary interview or more recently when they decide to execute a full S.18 search when the voluntary interview was on going, then case law has decided that you will have an actionable cause against them.

A voluntary interview means that there is little control over the progress and length of the investigation, they are often allowed to drift on and on.

After interview police are supposed to inform you that a decision about the case will be made at a later unspecified date.

We have noticed that increasingly young people, and even adults facing very serious allegations of sexual offences, money laundering and serious fraud are now subject to voluntary interviews.

Very often clients are not informed when a decision to take no further action on the investigation is made, or as stated earlier when they suddenly receive a summons to attend criminal proceedings at court. Instructing a pro active solicitor means that s/he can continue to place pressure on police to come to a decision earlier, and that you are fully informed of the progress of the investigation.

If on the other hand you are interviewed after arrest the PACE clock kicks in, which determines how long you can be detained, you come before an experienced Custody Sgt who is responsible for your treatment and welfare. There are a certain number of specified protections enshrined with that statute.


New bail revisions in force

The Policing and Crime Act 2017 brings in new provisions governing police bail but it's our belief that in fact police will increase their dependence upon voluntary interviews because of these new onerous and expensive provisions.

The police must now release an individual without bail unless they believe that bail and conditions are attached to that bail are 'necessary and proportionate'. Those who are bailed are likely to be only bailed for a period of 28 days unless a senior officer agrees to an extension of that period to three months. If they require a further period of three months then they must apply to the Magistrates Court, these are going to be very rare cases.

The FCA and SFO are exempt from these provisions because of the complexity of their often multi jurisdictional investigations and the time that these entail. They can have extensions of up to three months at a time, without a review, and a senior officer can authorise a further period of six months. However, we have noticed that all of our clients currently facing these allegations are not on bail at all.

The police bail provisions and extensions are for police investigation only, and do not apply to the time that the CPS take to consider potential charges.

The Magistrates Court, when seized of an application to extend bail must take the following into consideration:

1. That the investigation and decision to charge is being conducted diligently and expeditiously; 
2. That there are reasonable grounds to believe that further time is necessary; 
3. That further bail is necessary and proportionate taking into account any bail conditions.


If you are asked to attend a voluntary police interview and require the best advice from leading specialist criminal defence lawyers, contact us on 02073872032 or use our online enquiry facility at

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Non Recent (historic) sexual abuse investigations in Sport under Operation Hydrant

One of the relatively new strands of investigation under Operation Hydrant will focus upon allegations of non recent sexual abuse in Football, as a result of the allegations made by 20 high profile, former Premier League footballers who waived their right to anonymity. 

Sexual abuse allegations have been made worldwide in relation to nearly every sports discipline. 

Operation Hydrant is a Nationwide Police and multi - disciplinary operation, co- ordinated by the Association of Chief Constables. It focuses upon 'non recent' (historic) sexual abuse allegations that are over a year old.

Currently the Metropolitan Police (Sexual Offences, Exploitation, and Child Abuse Command ) are investigating over 255 allegations of sexual abuse across every amateur and professional football league in the Country, some 248 clubs in all. 

Over 500 complainants have made allegations against 184 potential suspects, and there are currently 526 alleged victims involved.

The FA is also co- operating in full with Operation Hydrant and launched their own independent investigation towards the end of 2016.

The NSPCC in December 2016, were quoted as stating that they received three times more victim reports in the first days after setting up their specific helpline than they did after the Saville Abuse scandal broke.

So it's accurate to say that all the relevant authorities are taking these allegations seriously.

What to do if you are being investigated for non recent sexual abuse?

You have probably received a telephone call from police asking you to attend a voluntary interview or they have arrived at your home or workplace in order to arrest you.

The first thing is to try and stay calm, it is vital that you immediately seek assistance from genuinely experienced specialist defence lawyers, who have a proven track record in this field.

Put aside any embarrassment or shame that you may feel, you need assistance with this issue.

Ensure that you have a lawyer attend with you during the interview.

If the police have indicated that they want to interview you, voluntarily by appointment, make arrangements so that you sit down with your chosen lawyer and give her/ him full instructions before the interview if possible.

If you have been falsely accused of these allegations, intentionally or otherwise, do you have an alibi for any of the dates that the complainants raise? Are there wiling competent defence witnesses who can attest to your innocence?

Has this complainant made allegations, false or otherwise against you or others that you know about?

Should your defence team be considering third party disclosure requests from sports organizations, schools, doctors / hospitals and social services - a good lawyer will be thinking about that  at the beginning of the process, though these particular requests will be made at a later stage in the trial proceedings, should the case proceed that far. 

The police station interview is of vital importance to defendants, if you answer questions it's imperative that you provide clear accurate information that can be tested and verified. 

Your lawyer will seek as much disclosure from the interviewing officers as possible, be alive to the fact that you are not entitled to any or full disclosure at all, so that is a delicate process that needs to be handled carefully. 

Do not be persuaded by police to go into the interview without legal representation, they will often say that they just want a quick chat.... waiting for a lawyer will only delay things and that they want you to get home as early as possible.... that they want to hear your side of things.... or if it's possible that you could just help them with their enquiries. 

Don't be will be interviewed under a full caution, you don't have to answer questions but adverse inferences can be made at a later stage during trial proceedings if you fail to raise important issues as part of your defence.

Your lawyer may advise that you sign a carefully drafted ' considered statement ' which addresses important issues, instead of advising you to answer all police questioning.

Additionally, if you are guilty of some or all of these offences, developments in the Law of Sentencing now place huge emphasis upon the stage that admissions to the allegations are made by the defendant.

For example if a defendant admits all during the police station interview stage s/he will be entitled to the maximum discount on a custodial sentence.

The Courts hand down huge sentences in these cases, (please refer to The Sentencing Guidelines on Sexual offences, published by The Sentencing Council for England and Wales) so it's an important consideration and one upon which you must take expert advice.

These cases are highly emotive, complainants are treated as vulnerable witnesses and can give evidence behind screens and or via video link. Their evidence can be highly distressing to all those involved. 

Following the Saville Abuse Enquiry, the police and general public have changed their attitude to sexual abuse allegations, the police now work on the basis that the complainant, (to whom they will refer to as the victim throughout the process) is telling the complete truth. 

This despite the recommendations of Sir Richard Henriques whose report (An Independent Review of the Metropolitan Police services handling of non recent sexual investigations alleged against persons of Public Prominence - 31.10.2016) advises that Police return to established and effective investigating techniques, which include the testing of the Complainants evidence for veracity and consistency. 

How to choose the best lawyer for you?

First of all decide whether you will want to apply for legal aid or pay privately (some firms will only work on a private fee basis), Do you want to instruct a local firm or decide to look further afield?

Do your research...look for the best firms who are highly ranked in the Legal ranking Directories ( legal 500 and Chambers Uk ) Carefully scrutinise their Google rankings, clients testimonials, their websites and their case results. 

You need to instruct the very best, most experienced, hardworking lawyers who will fight tenaciously upon your behalf, but are still prepared to give you direct honest plain speaking advice when it's required.

Look for lawyers who are genuinely pro- active and will thoroughly investigate your defence, leaving no stone unturned.

Remember the consequences of a conviction.... long period of imprisonment, placement on the Sex Offenders Register and the distinct possibility of civil proceedings instigated by the complainant against your assets are just some of the consequences that you will face.

Additionally your career, reputation, family, friends, colleagues and employers will also be severely affected. 

How can we at Lewis Nedas law help you?

You will have probably already seen from our website ( that we are a long established, highly experienced successful team of specialist defence lawyers.

Within that team we have another specialist team who regularly defend sexual offence allegations.

Some of our successful cases are detailed on our website (see Criminal cases and results section) but by no means all, they give an indication of our defence work.

We are very experienced: when dealing with multiple complainant cases, allegations that go back decades : identifying relevant witnesses and supporting documentation : navigating our way through difficult third party disclosure applications  and generally forcing the CPS to disclose ALL relevant material that could assist your case.

We fully understand the sensitive and delicate approach needed when cross examining  complainants who are often members of the same family, peer group, former pupils or students Perhaps they belonged to the same sports, social clubs or schools?

Is there any suggestion that their evidence could be tainted in any way by this association?

We are very keen that we should all work closely with the client as part of a team and listen carefully to the clients instructions and requirements.

We instruct the very best advocates and barristers that you can afford, and insist upon using leading Forensic Psychiatrists, psychologists, medical, handwriting, computer, CCTV, telephone and documentary experts/analysts to support your defence.

We are highly ranked by the Legal 500 and Chambers Uk (for many many years) within the London and Nationwide legal market (London being the toughest and competitive of legal market in the Country), have won any number of legal awards, and have given expert advice on television, radio and in the press.

Some of our team members have consistently high acquittal and overall success rates (including sentences), another was a member of The Sentencing Council and worked on the final Sentencing Guideline on sex offences, another defended six of these cases last year and secured 5 acquittals and an excellent sentence for a sixth client facing high profile allegations, who entered an early guilty plea to offences involving some of his pupils.

If you feel that we can help you please contact us on 02073872032 or use our online contact form.


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and Awards

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