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APR
26

Stamp Duty Land Tax & Problems with HMRC

The Financial Times (19/4/2013) reports that a large number of homeowners have been informed of large discrepancies between the amount of Stamp duty which they have paid and the purchase price of their property, by HMRC.

It would appear that largely as a result of the negligence of their solicitors a lower purchase price was inserted in the paperwork and this has come to the attention of HMRC who are demanding that the homeowner pays the amount now owing. This despite the fact that it was the fault of the solicitors concerned. It is vitally important that the purchaser themselves checks the SDLT figures, because ultimately it is the responsibility of the purchaser.
 
If you are purchasing a property ensure that the solicitors that you instruct are fully qualified, experienced and reputable such as our property team at LEWIS NEDAS LAW.

CONTACT Richard McConnell; Janak Bakrania or Layna Thompson.
 
If you are one of these homeowners now facing a large unexpected demand from HMRC, you will need advice when dealing with HMRC (contact Jeffrey Lewis or Siobhain Egan) and with the SRA /Solicitors Indemnity fund when making a claim against the solicitors involved contact Jasbir Kaur.

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APR
19

Criminal records checks – and old convictions

The Home Office has started work on changing the law to make sure certain old and minor cautions and convictions will no longer be disclosed on the certificates issued after criminal records checks.

The move follows a Court of Appeal ruling earlier this year, which stated that the disclosure of all cautions and convictions on a DBS (Disclosure and Barring Service) Certificate, previously known as a CRB (Criminal Records Bureau) certificate, was incompatible with Article 8 of the Convention for Human Rights.

Current position

At the moment, the criminal record checking service allows employers to access the criminal record history of people working, or seeking to work in certain positions. This includes roles such as doctors, dentists, lawyers and accountants - and people applying for jobs in which they would have contact with children and vulnerable adults.

However, concerns have been expressed over the extent of the checks, and the fact that they highlight certain old and minor convictions and cautions that may actually no longer be relevant.

Disproportionate

The issue came to the fore at the end of January this year, when the Court of Appeal ruled that the automatic disclosure of all convictions and cautions on CRB checks, regardless of their relevance to the job in question, is disproportionate – and therefore incompatible with the right to private life under article 8 of the Human Rights Act.

The case in question was that of “T”. It concerned a 21-year-old man who received warnings from Manchester Police when he was 11-years-old in connection with two stolen bikes. This information was disclosed on two occasions; when he applied for a part-time job at a local football club at the age of 17 and later when he applied for a University course in sports studies.

Court ruling

The Court found that the relevance of a conviction or caution to a particular job application depended on a number of factors including seriousness of the offence; age at time of the offence; sentence or otherwise imposed; time since offence committed; whether the individual has reoffended; and the nature of the job applied for.

The Court ruled that the disclosure system had the potential to interfere with privacy rights because “as a conviction recedes into the past, it becomes part of the individual’s private life” and “the administering of a caution is part of an individual’s private life from the outset”.

According to Corinna Ferguson, Legal Officer for human rights group Liberty, the ruling was sensible, requiring “the Government to introduce a more nuanced system for disclosing this type of sensitive personal data to employers.”

Proposals

Since then the Government has been working to develop a set of filtering rules that would remove certain old and minor convictions and cautions from a DBS certificate.

The filtering rules which are now before Parliament for consideration are:

  • An adult conviction will be removed from a criminal record certificate if,
    • 11 years have elapsed since the date of conviction
    • it is the person’s only offence
    • it did not result in a custodial sentence, and
    • it does not appear on the list of specified offences.
    • If a person has more than one offence, then details of all their convictions will always be included.
  • An adult caution will be removed after 6 years have elapsed since the date of the caution - and if it does not appear on the list of specified offences.
  • For those under 18 at the time of the offence, a conviction received as a young person would become eligible for filtering after 5.5 years - unless it is on the list of specified offences, a custodial sentence was received or the individual has more than one conviction.
  • A caution administered to a young person will not be disclosed if 2 years have elapsed since the date of issue - but only if it does not appear on the list of specified offences

The changes will not come into force until after the legislation has completed its passage through Parliament.

Contact our Criminal Lawyers in London

For specialist legal advice and criminal defence in the UK, please contact Jeffrey Lewis or Siobhain Egan on 020 7387 2032 or complete our online enquiry form here.

This blog is provided as a news item only. No connection between LNL and the parties involved is intended or implied

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APR
19

Land bank fraud arrests by FCA

The FCA have just announced the prosecution of eight individuals allegedly involved in land bank frauds concerning three separate companies , as a result of Operation Cotton.

Land banking, unregulated collective investment, schemes have come to the attention of both the FCA and various trading standards authorities up and down the country over the last few years. There have been a handful of high profile prosecutions since 2012.

Land banking, per se, is NOT illegal, and we have successfully defended many individuals and companies who have come to the attention of the authorities (both investigations and prosecutions) by showing that these individuals/companies ran legitimate businesses. The authorities have taken a negative "blanket view" of the industry as a whole, none the less.

Land banking has attracted the attentions of largely small investors (often "sophisticated investors") anxious to secure modest returns on often modest investments.

The land banking companies will buy land, and then sell off parcels of this land to investors, on the basis that the land is genuinely theirs to sell and that it is likely to increase in value.

The land maybe well located near a town, likely to receive planning permission to build upon or benefit from a fresh designation from green belt to brown belt. This is all against a background of this government repeatedly stating that it will encourage the loosening of planning rules and revoking green belt designations.

If you are facing such an investigation/prosecution, you will need to instruct established, successful fraud defence lawyers, who understand how the authorities prosecute these cases. You will need lawyers who also understand how these companies and the property market works.

At LNL we offer, a multi-disciplinary approach. We draw upon our successful expertise in: fraud defence; asset confiscation; money laundering; property and civil litigation.

We are currently advising individuals facing investigation /prosecution facing these matters and have successfully concluded a number of these investigations, avoiding the prosecution of our clients this year.

Contact Jeffrey Lewis; Siobhain Egan; Miles Herman or Keith Wood.

This blog is provided as a news item only. No connection between LNL and the parties involved is intended or implied

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APR
16

Alternative Dispute Resolution in Construction Disputes

"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser — in fees, and expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough." – Abraham Lincoln

Parties in construction regulate their relationships through the contractual arrangements into which they have entered. At times, parties come into conflict or disagreement. Having a means by which such differences can be effectively resolved is as important as having a relationship that can work successfully to the mutual benefit of all parties. Thus, it is vital to have considered at the outset how both parties will resolve disputes or differences that may arise. At whatever stage a dispute arises, alternative methods of resolution are always available.

There are numerous business dispute resolution options available to parties to a construction contract. Some are more effective than others depending upon factors such as the nature of the project, the issues in dispute, the stage at which the dispute arises and the relationship between the parties.

Mediation, arbitration, conciliation and expert determination are all growing in popularity. They are all confidential processes and are conducted in private.

Mediation

Mediation is a private, without-prejudice process which involves a neutral third party assisting parties to reach an agreed resolution to the dispute. In essence, mediation is assisted negotiation and the mediator does not decide what the solution should be.

Conciliation

Conciliation is a private, without-prejudice process whereby an independent third party, either appointed by agreement of the parties or through the agreed governing bodies, listens to each party's case and seeks to bring them towards a settlement. Where this is impossible, the conciliator issues a recommendation, which will become binding on the parties if not rejected within a certain, often very tight timeframe.

Arbitration

Arbitration is supported by a statutory framework and is commonly used in construction disputes. The arbitrator effectively sits as a judge and follows procedures akin to those applied by the courts. The arbitrator's decision can be challenged before the courts only in very limited circumstances.

Expert determination

Expert determination differs from arbitration in that no statutory framework has been established to govern it. In the event that both parties make provision for the appointment of an independent expert, this expert will give a decision within a finite period on the issues in dispute. Once the expert has rendered his or her decision, the matter is virtually at an end, since there are few grounds on which a party can appeal an expert's decision to a court. Expert determination is often effective in resolving more technical disputes.

Adjudication

Adjudication has proved to be a positive experience in the United Kingdom as an alternative means of resolving disputes, particularly those arising during the course of the works. There is no reason why parties cannot agree to a procedure akin to adjudication in their contracts, identifying an agreed adjudicator at the outset and setting out the procedure through which disputes are to be referred. Adjudication can allow decisions to be made and can require swift compliance whilst awaiting pending referral of the issue to arbitration or any other forum for dispute resolution.

It should be borne in mind that the most appropriate form of alternative dispute resolution will depend on the role of each party in dispute, the contractual relations being entered into and the nature of the project. The resolutions that are reached may depend on each party's bargaining position.

Here at Lewis Nedas, we are able to assist our clients with alternative methods of resolving disputes and emphasise the importance of viewing litigation as a last resort to determining disagreements especially involving parties to construction agreements. We are currently advising a client, who is the main contractor on a million pound design & build project in relation to a dispute involving a sub-contractor. Should you require advice in respect of a similar matter or issues raised within this article, please contact Mr Jeffrey Lewis or Miss Jasbir Kaur on 0207-387-2032, who would be happy to assist.

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APR
09

Proving a Negative with Asset Confiscation Orders: The "Hidden Asset" Problem – by Siobhain Egan

For anyone facing a confiscation order, one of the most perplexing aspects is when the Crown start to speak about "hidden assets". This is not, strictly speaking, a legal term and from a defendant's point of view represents a particularly unfair element to confiscation proceedings.

The stakes are high because a "hidden asset" can mean serving an additional sentence in default.

What is the best way to deal with this issue?

The evidential burden falls on the defendant to prove to the Court on the balance of probabilities (the lower standard of proof) that s/he does not have hidden assets, i.e. that they have disclosed all and that their financial worth is less than the criminal benefit figure determined by the Court.

In truth, the process begins when either the original restraint order (if applicable) and the confiscation order is made.

Proceeds of Crime Act 2002 (POCA) and Asset Restraint

Under the Proceeds of Crime Act 2002 (POCA) the defendant has to complete a financial statement. It is fundamental that the statement is complete, frank and accurate. Even more importantly, the defendant must be sure to insist upon instructing specialist solicitors such as ourselves to help him/her.

It's important that from the outset that the defendant details all parties who may have an interest in any asset/sum of money, so that the Crown are on notice from the outset that there are third parties likely to be affected by these proceedings.

We have been defending both restraint and confiscation proceedings for many years. A large number of our clients instruct us after conviction when represented by other solicitors, and we are often recommended to defendants by other professionals because of our expertise.

We take a very pro-active approach which has been very successful. The key to our approach is thorough immaculate preparation, as well as working closely with forensic accountants (in complex cases) and specialist barristers. We also have a proven track record; our successes in this field are detailed in our "news "and "cases" sections on our website. Our specialist lawyers are all ranked in the various legal directories e.g. Super Lawyers UK, Chambers UK, the Legal 500.

To assist with the preparation of the case, we focus upon the expenditure incurred by the defendant when running his/her home/family/business, in fact we closely scrutinise ALL aspects of his/her expenditure.

Where did all the money go?

The real question to answer is "where did all the money go" over the given period of time.

We will chase clear audit trails, and pursue witnesses and as much confirming documentation that we can find to support the defendant's assertions about his/her expenditure, including pursuing such evidence in other jurisdictions.

The Crown just have to raise in court that that assets have in their view "disappeared" or perhaps been transferred to offshore accounts or placed in trust. They would also point to unexplained cash withdrawals from accounts as evidence of hidden assets.

If assets have suddenly been sold/transferred to others at reduced prices, that too would, in the Crown's view, point to "hidden assets".

Forensic Accountants & Reconstruction of Accounts

We have, as part of our defence of these proceedings, instructed forensic accountants to essentially re-construct accounts or businesses to show the patterns of earning and spending, to great success.

The work of our highly skilled specialist lawyers has attracted much positive comment from the Judiciary and other professionals alike.

This is a highly specialised area of law, not helped by very mixed and often contradictory case law so it's imperative to instruct lawyers who genuinely know their field.

The key to the issue of "hidden assets" is... preparation, preparation, preparation!

For advice on any of these issues regarding hidden assets or in respect of our asset restraint and confiscation legal services, contact Jeffrey Lewis, Jeremy Ornstin, Layna Thompson or Keith Wood.

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