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New Instruction for LNL, Jeffrey Lewis & Keith Wood

gag orderWe have been instructed to represent an individual who is the subject of a 'super injunction' and is facing criminal contempt proceedings in the High Court.

This will be our third such instruction in this field over a period of as many months.

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Keith Wood Published In Lexology

gag orderKeith Wood’s article on an aspect of Super Injunctions was published in Lexology on 19 February 2014. See article here.

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New Important Developments Regarding Super-Injunctions – by Keith Wood

gag orderThis firm has gained considerable recent experience of acting in privacy/harassment injunctions and in particular applications to commit following breach.

Two important related matters have become clear as a result of recent cases.

The High Court has clarified the public funding arrangements for those facing an application to commit for breach.

It has been unclear since the commencement of LASPO how those facing imprisonment for contempt can obtain a representation order. The Legal Aid Agency routinely rejects any application for civil funding. It does not appear from the application form CDS 14 for criminal funding hat that is the appropriate route either. Nonetheless even an impecunious Defendant facing prison for contempt must be entitled to representation. The issue has been very recently settled in Kings Lynn v Bunning 2013 EWHC 3390 (QB). An application on CDS 14 should now succeed. The limit on funding can be raised on application to the High Court. We were instructed for a co defendant in that landmark case.

The High Court has reaffirmed the requirement that proceedings particularly those where the liberty of the citizen is at stake should take place in public.

In ruling on an application to commit on a privacy injunction (so called super-injunction) the High Court strictly followed the practice guidance given by the Lord Chief Justice and the President of the Family Division on 3 May 2013 publicly naming the party committed for contempt, delivering a judgment in public with reasons for the committal and ordering that a transcript of the judgment be made available at public expense. Mr Justice Tugendhat gave judgment on the committal on 14 January 2014.

An application to commit the Defendant for contempt was made. It was alleged that there had been numerous breaches of a privacy order by the Defendant contacting the Applicant directly by telephone, sending text messages and emails. Some of this contact had occurred in person directly in person in and other contact was through solicitors. All was in apparent breach of the undertakings given by the defendant.

The approach adopted by the High Court following practice guidance from the Lord Chief Justice on this application to commit undermines the purpose of a super-injunction. Any party minded to seek such protection should have in mind that if he or she wishes to retain secrecy enshrined in the order then the order is unenforceable certainly by means of an application to commit for contempt. Solicitors and counsel advising in such cases will need to warn clients that should there be a breach of the order any application to commit is likely to be substantially heard in public and the name of the contemnor will be published thus defeating the anonymity order. There is a risk in such circumstances that the Applicants secret will be exposed as will the fact that he or she was willing to go to great lengths to keep the secret. Advice to a Claimant/Applicant in such cases needs to be given early in the process. Once an application to commit is made supported by evidence it is not within the gift of the Applicant to withdraw the proceedings. The victim in such cases is the court rather than the Claimant/Applicant.

Claimant/Applicants should also consider that the committal proceedings do not only concern liability i.e. is there a breach of the order or not. The penalty must also be determined. It is difficult to imagine circumstances where albeit that a breach is made out on the evidence there will not also be issues of fact relevant to determine the seriousness of the breach and mitigating circumstances which will need to be established. There is a real risk that such matters will be aired in public.

Lewis Nedas instructed counsel, Mr Ian Bridge of No5 Chambers. Lewis Nedas were assisted throughout the case by Jaque Courtnage of the Families for Justice Campaign.

If you need any advice in this area, contact our specialist lawyer Keith Wood on 0207 387 2032 or complete our online enquiry form here.

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SFO Pleads Poverty in Tchenguiz Case

The Financial Times (05 June 2013) reports that the SFO submitted to Mr Justice Eder that the Court should consider the cost to the taxpayer, as it continues to defend High Court proceedings brought by Vincent and Robert Tchenguiz, as a result of the agency’s ill-fated investigation into the collapse of Kaupthing Bank.

Mr Justice Eder apparently replied, “You are not suggesting that somehow the government should be treated differently from any other party? …it is something which it seems to me astonishing that counsel managed to sign.”

The Tchenguiz brothers have launched the largest claim against the SFO for damages in the region of £300 million.

It is difficult not to feel some sympathy for the UK taxpayer, and it is well known that the SFO’s budget has been reduced to £38.75 million in 2012.

However, that is not the full story. The Agency has taken on a large number of high profile investigations and they are guaranteed additional ring fenced funding from the Treasury if any investigation is going to cost more than £1.5 million. They have also been given £3.5 million to investigate the Libor scandal with promises of more money, should they need it.

The SFO has also managed to increase their coffers by an additional £6.6 million in 2011/12, as a result of various civil settlements and Civil Recovery Orders.

David Green QC, the SFO Director, must be looking wistfully across the Atlantic at his US counterparts and the incredible sums which they have recently levied as financial penalties for FCPA offences. The FCPA (Foreign Corrupt Practices Act) is the US equivalent of the UK Bribery Act 2010.

In 2010 the Department of Justice collected $870 million and the SEC an additional $148 million, although that dropped in 2011 to a mere $355 million, because of their aggressive attitude and use of Deferred Prosecution Agreements.

The SFO is responsible for bribery and corruption enforcement, and can look forward to using Deferred Prosecution Agreements in 2014 to raise some real money.

If you are facing an investigation by the SFO, contact specialist lawyers like us and speak to Jeffrey Lewis or Siobhain Egan.










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High Court Extradition Success for Nicholas Wragg & Counsel James Stansfeld

Mr V’s extradition was sought pursuant to five European Arrest Warrants issued by Hungary to prosecute him for thirteen offences of fraud. Whilst not all offences could be challenged there was, in addition to a successful challenge to the first warrant that Mr V cannot be extradited for that offence, a new argument was raised because three of the warrants sought extradition for the same offences. In agreeing with James Stansfeld’s arguments, Mr Justice Keith held that Mr V could not be extradited for any of those offences unless Hungary decides to only prosecute Mr V for two out of the four offences. We are awaiting Hungary’s decision.

It should be noted that whilst Mr V will invariably be extradited, Hungary will be prevented from trying him for offences that he was not permitted to be extradited for. This may have a significant impact on the length of sentence he would face if convicted.

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