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Lewis Nedas Law are London-based solicitors. Frequently rated in both Chambers UK and The Legal 500, we can help you or your business today. Tel: 020 7387 2032.
MAY
13

Crowd Funding: A Novel Approach to Property Ownership – By Richard Greenby

lease enfranchisementCrowd funding over the internet is a popular recent phenomenon involving a group of investors that team up for a financial opportunity and pool their resources together.

Crowd funding has grown in stature over the last few years, with investors providing funds for an increasing array of investment opportunities, typically in return for either equity in the borrower’s company or based on debt repayment plans. The added draw for investors is that they can invest in projects for relatively small sums of money, such as a £500 minimum entry.

In the property context, crowd funders become the shared owner of a property investment or the registered (i.e. secured) charge-holder in exchange for their financial backing. Projects can vary from short-term funding to longer-term matters.

As with all investments, the merits of each project need to be carefully reviewed. Crowd investment is also subject to the general drawback of generating sufficient interest from other potentially likeminded investors.

As with all investments, potential investors should therefore carry out sufficient due diligence in order to form a balanced assessment of their proposed investment. However, some investors may decide to rely on the investment platform organisers’ expertise and knowledge of specific property market areas and opportunities.

Once sufficient interest and funding is generated for a particular project, the conveyancing process commences in the usual fashion, with the added structuring of a Special Purpose Vehicle (‘SPV’) for the post-completion ownership of the property or in relation to the corporate loan arrangement over the property.

A Special Purpose Vehicle is a company set up for the sole purpose of a particular property investment and is, by its nature, intended to be legally separate from the crowd funding organisers.

Following completion, the investor will hold a specific share allotment in the SPV.

If the SPV is for property investment purposes, tenants are sought and lease arrangements are entered into with personnel from the investment platform organisation coordinating with lawyers and managing agents. Rental income is accordingly received and the platform organisers deduct their commission fee.

Furthermore, at the relevant time, it may be decided by crowd funders on a particular project to sell the property acquired. The subsequent pricing of the said property would be a matter for the crowd funders to agree collectively. In addition, investment platform organisers would charge a fee on the capital growth in the value of the property asset.

If you require any assistance with a matter such as the above, please contact Richard Greenby on 020 7387 2032, or complete our online enquiry form here.

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MAY
05

Crown Court Appeals in Motoring Cases – by Martin Lewis (Barrister, Castle Chambers)

motoringAll too often, a defendant wonders if he or she has been treated fairly, and whether an incorrect finding of guilt or a sentence that is just too severe has to be accepted as final, especially in motoring cases when they have experienced the ‘rough justice’ that can be dealt out by a Magistrates’ Court.

In all such instances, provided that a Notice of Appeal (a document briefly setting the claimed errors of the magistrates' findings) has been served on the Magistrates' Court within 21 days from the date of conviction/sentence, a defendant is entitled to take the case further and appeal to the Crown Court to have their case reconsidered. If the 21-day period has been exceeded, then a defendant would have to apply to the Crown Court for permission (or leave) to appeal out of time. This application should set out the reasons why the Notice of Appeal is late. The later the Notice of Appeal, the less likely the Crown Court is to grant leave to appeal out of time.

Whether it is an appeal against conviction or sentence, the case is decided by a Crown Court judge, sitting with two magistrates (no jury is involved). The appeal is essentially a rehearing of the proceedings and, where it is an appeal against conviction, the evidence is heard anew with witnesses required to give testimony for a second time.

Where an appeal fails, the judge may substitute a harsher sentence than was passed by the Magistrates' Court (although this is a rare event) and will almost certainly order the unsuccessful appellant to contribute financially to the costs of the respondent (usually the CPS).

Why appeal?

  • The Crown's case was not convincing or there was no good reason to reject my defence.
  • The verdict has prevented me from keeping my job.
  • The verdict could be used against me should I be summonsed or charged in the future on another allegation.
  • The verdict has caused the price of my motor insurance to rise steeply and/or I cannot get insurance at all.
  • The verdict has led to the revocation of my taxi driver licence.
  • The sentence was too harsh, i.e. I ought not to have been given a driving ban or banned for so long / my driving licence ought not to have been endorsed with so many penalty points / the fine was much too high.
  • A prison sentence should not have been passed (a number of driving offences carry the possibility of imprisonment, notably: drunken driving, dangerous driving, and failing to stop after an accident).

The reality

From my experience, I estimate that over 50% of Crown Court motoring appeals succeed in whole or in part. If the circumstances are right, an appeal to the Crown Court provides a good opportunity to correct the mistakes that are frequently made by magistrates and prosecutors.

Funding the Appeal

If you had legal aid for the Magistrates’ Court proceedings, it is most likely that you would be granted legal aid to cover your representation for the appeal.

However, if you funded the Magistrates’ Court proceedings privately (usually the case), then the Crown Court Appeal will also have to be paid privately. This does not mean that the fees are necessarily exorbitant and in any event, if your job, for example, is dependent upon having a licence, it may be worth the costs of an appeal.

Martin Lewis is a barrister of 18 years call at Castle Chambers and deals with cases covering all aspects of criminal law. This article is for informational purposes only and does not constitute legal advice. If you require any advice please contact Jeffrey Lewis or Siobhain Egan on 020 3553 7443, or complete our online enquiry form here.

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APR
23

Defending Those with Dementia in a Criminal Trial – by Martin Lewis (Barrister, Castle Chambers)

old jailbirdIn the public's psyche, our biggest health fear, cancer, has largely been replaced by a diagnosis of dementia. What can be worse than to suffer the loss memory, control, identity, and the loss of self?

An ever-aging population has meant that dementia is affecting many families, and an appetite to prosecute historic crimes, notably sex crimes, against now elderly defendants, means that dementia has become an increasing feature of our criminal legal system. For some years, the fastest growing sector of UK's prison population has been men in their 60's, 70's , 80's and even 90's with a significant number of these serving lengthy terms for offences committed decades ago.

So how do our criminal courts cope with those defendants who, by the time of trial are suffering, or claiming to be suffering from dementia, severe or otherwise? The answer is, not very well.

Our law on this is still based on the 1836 case of Pritchard and essentially the following criteria apply: can a defendant suffering from a mental disability such as dementia, understand the criminal case that has been brought against him; adequately follow the evidence during the trial procedure; able to provide cogent instructions to his lawyers and is he capable to sufficiently participate in the trial procedure by being able to give evidence on his own behalf, or, archaically, is he able to challenge a juror?

If, supported by the evidence of at least two court approved psychiatrists, the answer to any of these issues is NO, as found by the trial judge, then the defendant is found unfit to plead. Thereafter, a jury is called upon to hear evidence to determine whether "he did the act" e.g., did he or did he not set fire to the building? The jury are not required to enquire into the defendant's mind (or lawyers' speak - mens rea) and consider questions such as intent.

Where a jury finds that the defendant "did the act" then the court's powers are quite limited and are restricted to an absolute discharge or some form of supervision or detention under a hospital order. The judge cannot impose a prison sentence.

This procedure applies to all unfitness to plead cases, but where dementia is the disability, particular difficulties are presented.

Conclusive diagnosis of dementia or the severity of the condition is impossible and physical evidence can only be obtained upon post-mortem.

It is a condition that can easily be feigned and the court misled; notably the infamous case of Earnest Saunders. His case has resulted in the criminal courts approaching cases of claimed dementia with deep suspicion.

The main apparent aspect of dementia is loss of memory and memory loss of the facts surrounding an alleged crime cannot itself amount to a defence or an assertion of unfitness to plead. Therefore, a diagnosis from two psychiatrists that a defendant is mildly affected by his dementia may well not be enough.

Of course there is the current controversy surrounding the high profile case of Lord Janner where according to the DPP there is sufficient evidence to prosecute but, due to his state of dementia (not his age or the age of the alleged crimes) it is thought "not to be in the public interest" to try him.

Undoubtedly, the DPP would not have reached this decision casually and without thorough psychiatric examinations, having taken place and certainly at least one of those psychiatrists would have been appointed by the Crown. Even so, her decision can be criticised. She has deprived the complainants of their chance to give evidence and she has deprived the accused Lord Janner of any chance of testing their evidence in an effort of salvaging what is now a ruined reputation.

Martin Lewis is a barrister of 18 years call at Castle Chambers and deals with cases covering all aspects of criminal law. This article is for informational purposes only and does not constitute legal advice. If you require any advice please contact Jeffrey Lewis or Siobhain Egan on 020 7387 2032, or complete our online enquiry form here.

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APR
13

The Hatton Garden Heist: What Next for Victims & Losers? - by Jeffrey Lewis

hatton garden safesIt has been described by various sections of the press as the most professional heist of the century, and has been attributed to the infamous ‘Pink Panther Gang’.

Reports have assessed the losses to within a range of between £60 million and £200 million, though the more recent and reliable reports state that just 72 of 999 boxes were broken into. Many of the losers/victims had deposited their business stock in those boxes.

What remedies are available to the victims?

Contractual

Scrutinise the contract between yourself and the safety deposit company carefully. Don’t imagine that their insurers are going to be ready to pay out quickly; prepare yourself for a long and difficult battle.

First examine the exclusion clauses. Are your items likely to be covered? Are there any maximum value limits? Are particular items excluded from cover?

Negligence

It could also be argued that the safety deposit company owed the box holders a duty of care to ensure that the items were protected. Was that duty of care breached? Did the company fail to maintain the expected standard of care? Media reports that the Police believe that there may have been an ‘inside man’ involved in this robbery could give rise to a negligence action.

Bailment

Those that hold the safety deposit boxes will be regarded as the bailors and the Company is the bailee. In these circumstances, the Company would be liable for any loss, damage, or destruction of the items held, unless the Company could prove that the loss was not caused by any breach of duty that they owe the bailors.

How we can help

In 2008, we represented a large number of individuals whose safety deposit boxes were raided by the Metropolitan Police in a high profile operation known as Rize. Many of those holders lost items or had items damaged because of police action.

We dealt with the Met’s lawyers and insurance companies concerning those losses and damages. We also successfully advised and represented clients who found themselves subject to HMRC (tax) investigations and money laundering (POCA) investigations that followed the original police operation.

As a result we know exactly what you will need to prove (in terms of documentation and valuations), and which arguments to raise in order to be fully compensated for your loss.

Contact Lewis Nedas expert lawyers

If you require any assistance in this regard, please contact our specialists Jeffrey Lewis or Ian Coupland by calling us on 0207 387 2032 or completing our online enquiry form here.

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MAR
23

SFO Investigation of Celtic Energy

fraudThe Serious Fraud Office (SFO) often employs all of the tools at its disposal in order to investigate any suspicion of fraudulent activity. In its work, the SFO will only act if it is convinced that there is real evidence of suspect activity, in order to bring a successful investigation and if need be, legal action against the perpetrators. It is surprising therefore when the SFO fails to identify fraudulent activity, and is ordered to repay others for the impact of being under investigated as was the case with Celtic Energy Ltd in February earlier this year.

What was the SFO investigating?

This case has quite a complicated history. In 2013 the SFO had brought charges of conspiracy to defraud against two senior executives at Celtic Energy Ltd, a company specialising in opencast mining, and four lawyers that were advising the company. Through its operations Celtic Energy had come into possession of a coal mine in South East Wales. However when a company ceases mining activities, certain obligations are imposed on it to restore the site to the condition it was in before mining began – so to be the case with Celtic Energy.

There was an allegation from the SFO that Celtic Energy along with its legal advisors had planned to create a company that would be based in the British Virgin Islands, and to transfer the leases of the four minds that it operated to this company. The SFO claimed that this was with a view i.e. a conspiracy to defraud not only the city councils in the area, but also the Coal Authority in allowing it to avoid its legal obligations to restore the pitts, and to pay the cost involved which was estimated to run into several million pounds.

What was the decision?

This case was ultimately dismissed by the courts on the basis that there was no evidence had acted unlawfully – regardless of whether or not they had acted dishonestly. The SFO attempted to restart the court action against Celtic Energy by using a specialised procedure known as “voluntary bill of indictment”. This was refused by the High Court. In nearly a year since the case was dismissed by the courts, the High Court in Cardiff issued a judgement that the legal costs of the claim i.e. the cost of the barristers arguing the case and two High Court hearings, estimated at around £7 million, was to be paid by the SFO. The order to pay legal costs has significant consequences for the SFO, whose role in the UK has come under increasing criticism in recent years.

Why wasn’t the court persuaded that there was a conspiracy to defraud?

Fraud is an inherently difficult crime to prove, and conspiracy to defraud is equally complex to establish in a court of law. The Fraud Act 2006 sets out precisely what is required in order to prove that fraud had taken place:

  • • Fraud by representation;
  • • Fraud by failing to disclose information; or
  • • Fraud by abuse of position

The ‘conspiracy’ element is not actually contained in the legislation, but is part of the common or ‘judge-made’ law. It was created to make up for the fact that the legislation had certain loopholes that had been exposed in later cases. In order to prove ‘conspiracy’ the SFO, in conducting its investigation and prosecution, would have to prove that there is a plan between parties to commit fraudulent activity.

In the case of Celtic Energy, the court was not convinced that there was any fraudulent activity for the following reasons:

  1. The plan of Celtic Energy to transfer the leases the leases it held for the coal mines could be deemed dishonest, but were not illegal; and
  2. In order to prove that there was a conspiracy to defraud the local councils and the Coal Authority, the court needed evidence that they had suffered financial loss as a result of the transfer of the leases. This was not proven. The court drew special attention to the fact that as criminal courts, they are not concerned with the “commercial morality” of Celtic Energy’s dealings. While the plans of the company and its legal advisors may be subject to criticism in the marketplace, this did not amount to criminal activity. Furthermore the court also criticised the SFO for failing to point out what was in fact demonstrable illegal activity, and only identifying what it thought of as illegal. Fraud cases, no matter how they are presented, are incredibly difficult to prosecute. Allegations of a ‘conspiracy to defraud’ make the work of the SFO much more difficult: they must prove that a party had planned to do something illegal.

The case of Celtic Energy is one of the two most notable instances where the SFO has failed to prove its case, and have been ordered to pay several million pounds in compensation.

Contact Lewis Nedas

At Lewis Nedas we have a long and successful history of advising clients concerned with investigation by the SFO and other regulatory bodies. Our dedicated team of Financial Crime lawyers are very familiar with this area of the law, and regularly advise and represent clients in their dealings with regulatory agencies. If you are concerned that your organisation may face an investigation, contact us now. We understand that the prospect of legal action against you or your firm can have a tremendous impact not only on you personally but also the reputation of your firm. We will work in partnership with you to ensure that you understand your rights, and that you are represented by expert lawyers who will handle your case with professionalism and integrity. If you have any questions please contact us on 0207 387 2032 or complete our online enquiry form.

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