Luxury flat residents win Supreme Court private nuisance battle against Tate Modern

In a high-profile case, the Supreme Court has ruled that the Tate Modern’s viewing platform violates the privacy of luxury flats located opposite the art gallery. Located in the heart of Central London, in 2020 the Tate Modern was listed as the 3^rd most visited art gallery in the world, with around 5 ½ million visiting each year.

The gallery has a public viewing gallery on the top floor which allows visitors to see 360-degree panoramic views of London. Unfortunately, this means that for the claimants in this case, visitors to the viewing gallery are able to see straight into their living areas. According to the Supreme Court, this constituted an unacceptable level of intrusion.

So what does this case mean for privacy laws, and why did the Supreme Court come to the conclusion that it constituted a private nuisance? Keep reading to find out.

Background

The Tate Modern’s viewing gallery originally opened in 2016 and was swiftly followed by legal action from the Neo Bankside residents affected based on the common law of private nuisance. The viewing gallery is open from 10am until 5:30 pm from Sunday to Thursday, and 10am to 7pm on Fridays and Saturdays. However, the north and east sides can stay open until 10pm, with the whole gallery open until 10pm once a month. These hours have been shortened after previous complaints from the residents. Other measures taken by the Tate to address the concerns included asking visitors to stop taking photos of the properties opposite and putting up signs.

The claimants for this legal action are seeking an injunction which would require the Board of Trustees of the Tate Gallery to “prevent members of the public from viewing their flats from the relevant part of the viewing gallery walkway”. Alternatively, they are also seeking an award of damages.

Judges in both the High Court and the Court of Appeal had previously ruled against the flat-owners despite finding that the interiors of the flats drew significant interest from visitors to the Tate’s viewing gallery. This included people not just looking in, but also taking photographs and posting them on social media. In the initial trial, despite finding that the extent of the viewing into the claimants’ flats could in principle give rise to a claim for nuisance, it was found that this did not amount to a nuisance. The reason for this is that the judge found the use of the top floor of the Tate as a viewing gallery was reasonable, and also that there were two main factors which meant the claimants’ were responsible for their grievances.

1. They bought properties with glass walls

2. Remedial measures could be taken such as lowering blinds during the day or installing net curtains

On appeal the Court of Appeal found that the judge had applied the law incorrectly. Despite dismissing the appeal, they found that if the principles of common law nuisance were correctly applied to the facts of the case, the claim should succeed. The appeal was dismissed on the basis that “overlooking” cannot in law count as a nuisance. It is important to note that there is also no precedence for this in English law.

Judgment

The majority of the Supreme Court judges (3 out of 5) agreed with the Court of Appeal that the judge had incorrectly applied the law. However, they disagreed with the Court of Appeal in deciding that the law of nuisance does not cover such a case. They stated that the reason behind the lower courts dismissing the case could have been that they were reluctant to favour “a few wealthy property owners” over allowing the general public to have an unrestricted view of London.

One of the main tests applied by The Supreme Court was whether the viewing gallery “necessary for the common and ordinary use and occupation of the Tate’s land”. Lord Leggatt criticised the Court of Appeal for not applying such a test, and came to the conclusion that had it done so, it would have concluded that the Tate was not using its land in a “common and ordinary way, but in an exceptional manner”. Leggatt added that simply asking the claimants to put up curtains in order to prevent overlookers wrongly placed the responsibilities of avoiding a nuisance on the victim. He compared this with a noise complaint, stating that it would not be appropriate to simply ask someone to wear earplugs in such a situation.

In concluding that the Tate was liable in nuisance, Leggatt suggested that some form of remedy was required. However, he stated that this was not a matter for the Supreme Court, and that instead it should be up to the Chancery Division to decide on remedial action if the two parties cannot reach agreement on a solution.

Our thoughts

This is both a high-profile and important case which could have a significant impact on how other courts in England choose to interpret the law when it comes to privacy laws and overlooking. Some members of the public may have issues with the decision, determining that rich people who buy properties next to one of the world’s most visited museums should have little to complain about.

However, the Supreme Court made clear that the outcome was specific to the case itself. Nevertheless, it will be interesting to see whether the case leads to more claims around private nuisance and overlooking more specifically. In a city like London, with countless tall buildings in close proximity to each other, and space coming at a premium, it would be hardly surprising to see more cases of this kind. Whether it will have an impact on property developers will also be one to keep an eye out for.

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Does a solicitor owe a duty of care to a person who is not a client?

Duty of care is a relatively broad concept which refers to the obligations placed on people to act towards others in a certain way. While solicitors are used to having a duty of care towards their client, it is far more unusual for a solicitor to have to hold a duty of care to someone who is on the other side of the transaction in which they are acting. Where a solicitor does have to accept responsibilities of third parties, this is known as the Al Kandari principle.

A recent Court of Appeal ruling found that there are exceptional cases ‘where solicitors have been held to a duty of care to someone who is not their client’. In this case, Ashraf v Lester Dominic Solicitors & Ors, the duty of care related to the bank’s solicitor potentially owing a duty of care to the seller of the property when they filled in Land Registry paperwork. It is a complex case, with a total of seven defendants being sued for negligence overall.

But why did Lord Justice Nugee decide that the solicitor owed a duty of care to parties other than the solicitor’s client? Keep reading to learn more.

Background

This litigation action had been longstanding, having initially by been brought by the late Mr Syed Ul Haq, who is now deceased. The action originated as far back as 2008 from a purported fraudulent property transfer and continued following Mr Ul Haq’s death.

Two acts of fraud occurred which rendered the property transfer unlawful. The property transfer was ineffective as the TR1 transfer form was not witnessed. This meant that even though the buyer was living and paying the mortgage for the property, the buyer was not in fact officially registered as the owner. The transfer was conducted by FLP Solicitors who acted for all parties; however a solicitor there misappropriated the mortgage money, which led to them being given a custodial sentence.

As the lender for the property transfer, Bank of Scotland then instructed another solicitors firm, Rees Page, to deal with the incomplete registration. In 2010, Rees Page declared that legal completion did take place during the initial property transfer in 2008. They subsequently asked Mr Ul Haq, the seller, and Mr Attarian, the buyer, to sign new documents, which were executed with the original date of completion. The new TR1 transfer form was executed in 2010.

However, following the receipt of the documents, Rees Page had reservations about the legitimacy of the signatures. Despite this, neither Mr Ul Haq and Mr Attarian were clients of Rees Page, and the transfer and charge was registered with the Land Registry using form AP1. A number of boxes and panels had to be filled in, with one of these (panel 13), confirming that each party was represented by a conveyancer. The purpose of this is so reduce the risks of property fraud.

Rees Page listed FLP Solicitors as the conveyancer for Mr Ul Haq, despite the fact that FLP Solicitors had been intervened in by this point. The application was then completed, and Mr Attarian was finally registered as the legal owner of the property.

Following Mr Ul Haq’s death, action was pursued by the claimant on behalf of Ul Haq’s estate. This claim was brought based on claims that a signature on the TR1 form had been forged, and that the bank’s solicitors had been negligent in registering the transfer and charge. The estate subsequently lost the property, and they filed for an alleged breach of duty of care despite the fact that Ul Haq was never a client of Rees Page.

As mentioned previously, it was well-established that solicitors owed duties to their clients alone, and duties of care were not ordinarily held towards those on the other side of the transaction. In exception circumstances it could be held that solicitors owed a duty of care to someone who was not their client, known as the Al Kandari principle.

Given their confidence about their situation and belief that the estate didn’t have any chance of succeeding, Rees Page applied for summary judgment. This summary judgement was granted by the Court on the basis that there was no duty of care to someone who was not the solicitor’s client. The decision was appealed by Mr Ul Haq’s estate. While this was dismissed, the estate appealed once again. It is this appeal that is the subject of this article.

Decision

The Court of Appeal confirmed that it was correct that Rees Page offered no duty of care to Mr Ul Haq up to the date they submitted and confirmed the application to HM Land Registry. However, by filling in box 13 of the AP1 form, the solicitor, Mr Kilvert, was also acting on behalf of Mr Ul Haq when the property transfer was executed. The argument is therefore that by giving such confirmation, the solicitor was not solely acting for the applicant, but also other parties. This therefore engages the Al-Kandari principle, where solicitors can owe a duty of care when they step outside of their normal role.

Furthermore, this would mean that the solicitor would also owe a duty of care in filling in the form accurately, something he did not do. The acting Solicitor, Mr Kilvert, mistakenly thought that the contract had been completed in 2008. He therefore believed that the replacement transfer’s purpose was to finalise the formalities which had not been observed.

Despite this, the Court decided against ruling whether the duty was breached. They did however allow the appeal, which included setting aside the summary judgment which Rees Page had applied for. They also allowed the claim against Rees Page to go to trial on the limited basis. This is because Mr Ul Haq’s estate’s case did not rely on the solicitor mistakenly filling in the AP1 form.

Our thoughts

This is an important court decision which offers a warning for the steps solicitors need to take to ensure that they do not step out of their normal duty to clients. By filling and confirming Mr Ul Haq ‘s information in Panel 13 of the AP1, the solicitor had taken him on as a client unwisely. This requires him to act in Mr Ul Haq’s interest and fill in the form correctly.

This case also offers an important lesson for the extent to which the Courts are prepared to extend a solicitor’s duty of care. Whether the solicitor intends to represent a third party or not is not taken into account and therefore underlines the risk to assuming a duty of care to a non-client. The forthcoming trial will therefore be one of interest for those involved in conveyancing and property law.

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EU court says online marketplaces like Amazon can be held liable for trademark infringement

Today’s article takes a look at a recent intellectual property case involving Amazon and the Court of Justice of the EU. The court finds that online marketplaces like Amazon can be held liable for trademark infringement, keep reading to learn more.

This is a highly significant case due to the status and profile of Amazon as a company, which is the largest e-commerce website in the world. Amazon’s logistics have helped it to become the first choice for people in the UK, with the ability of consumers to order products for next day delivery for no extra cost, setting it apart from competitors.

Despite this, not all products are sold by Amazon itself, with Amazon itself essentially functioning as a marketplace for merchants to sell their products. This results in a different level of quality among sellers, with some being better than others.

The finding by the Court of Justice (CJEU) holds online marketplaces to account by finding that online marketplaces like Amazon can be held liable for counterfeits sold by third parties. This is a landmark case which is contrary to an earlier opinion given by the Advocate General. It is important to remember that in terms of the application of this decision in the UK, Court of Justice decisions are not binding for the Courts of England and Wales, however these decisions do remain influential.

Background

The claimant in the case, Christian Louboutin, is a French designer of luxury shoes and handbags. He owns his own brand Christian Louboutin, and his brand is best known for their high-heeled women’s shoes. Christian Louboutin originally brought cases against Amazon in a Belgian and Luxembourg court in 2019 because Amazon had displayed ads for red-soled shoes. The reason why this was an issue is that Louboutin is famous for its red-soled shoes, to the extent that they are in fact registered as a trademark within the EU. It is also registered as a trademark in Belgium, Luxembourg and the Netherlands.

Louboutin discovered that a third-party seller, not Amazon itself, was selling counterfeit versions of Louboutin’s iconic red-soled high-heeled shoes. The company did not authorize his own products to be sold on the Amazon platform or Amazon’s third-party sellers. Louboutin believed that Amazon violated the exclusive rights of the Louboutin trademark, despite not selling the counterfeit product directly themselves. They therefore blamed Amazon for not making it clear whether a good is sold directly by Amazon or a third party.

Following the case being brought before the Court of Justice of the European Union, this led to preliminary questions as to the possible liability of Amazon for infringement resulting from the use of the illustrious red sole trademark. The colour red corresponds to Pantone code 18-1663TP or “Chinese red”. The uses of the trademark in question include:

The use of the trademark in the context of commercial advertising
The trademark being displayed in an undifferentiated manner, obstructing transparency as to the origin of the products.
The use of the trademark during the storage and the dispatch, by Amazon, of counterfeit products bearing the said trademark and sold by third parties.

Court decision

The European Court of Justice held that one party’s unauthorized use of the same trademark as the other party’s trademark in fact means the use of the trademark. As a result, they found that the presence of the trademark in question on the Amazon platform does violate Article 9(2a) of the EU Trademark Regulation (Regulation No. 2017/1001).

Among other things, the Court noted that such use may give users of the online marketplace the impression that the advertisement for the product does not come from a third-party seller, but from the operator of the marketplace (Amazon). Amazon operates a “hybrid business model” in which it acts as both a marketplace operator and a third-party logistics service provider, which leaves consumers potentially sceptical about the source of infringing goods (whether it’s Amazon or a third-party seller).

Briefly, the court held that Amazon is different from online platforms such as eBay. This type of e-commerce only provides a “market environment” and does not participate in promotion, payment and delivery, while Amazon is deeply involved in it.

Therefore, although Amazon should not be liable for infringement, it does not mean that Amazon is exempt from infringement allegations on the basis of joint responsibility. This also means that if there is a trademark infringement problem on the Amazon platform in the future, it is not only the problem of the third-party merchants, but the Amazon platform can also be responsible for the infringing and counterfeit products sold by the third party.

Our thoughts

This case is likely to be a divisive one. On the one hand, many argue that Internet giants like Amazon have too much power and authority over the online marketplace anyway, and therefore the decision is welcomed. Certainly, brands like Louboutin would also welcome this decision, which reduces competition by removing imitations of their products.

On the other hand, many might argue that the decision goes too far. By increasing bureaucracy and oversight because of Amazon bearing responsibility for advertising counterfeit products on their marketplace, this could result in costs being passed on to the consumer, as well as reducing their choice. It could also be argued that it is harsh to punish the marketplace directly for trademark infringements by a third-party seller.

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Does the Home Secretary have the right to refuse an application based on false information in a previous application?

By Jessie Yang

In the case of Khan v The Secretary of State for the Home Department, the Court of Appeal dismissed the appeal of the appellant, whose application for Indefinite Leave to Remain had been refused by the Secretary of State (Respondent). The appellant’s application was refused on the basis that he had provided false information about his income in a previous application for leave to remain. It was held that the documents provided by the Appellant had to be genuine and therefore the Secretary of State had acted fairly by refusing the application.

Keep reading to learn more about the case and the rules for submitting false information in an application.

Background of the case

In this case, the Appellant applied for Indefinite Leave to Remain as a Tier 1 migrant. The Respondent (the Secretary of State) refused the Appellant’s application on the basis that the earnings that the Appellant had provided in his current and previous application for Indefinite Leave to Remain had not supported the lower amount of earnings that he had declared for the purpose of income tax. The Appellant’s claim was subsequently dismissed under paras 276B and 322(5) of the Immigration Rule.

The Appellant challenged the decision in the Upper Tribunal (Asylum and Immigration Chamber) by submitting a Judicial Review claim. The Appellant contended that the Secretary of State had acted unfairly by failing to give him adequate notice of the issues raised. In addition, the Appellant submitted that the Respondent’s finding of dishonesty had been irrational.

The Upper Tribunal dismissed the Appellant’s claim and the Appellant appealed.

Judgment of the Court

It was held by the Court of Appeal that the Upper Tribunal was not irrational in reaching the conclusion that the Secretary of State had acted unfairly. When reaching the decision, the court set out the following tests and requirements to be met by the Respondent, the Secretary of State:

1. Were the documents or information relating to the Appellant’s claimed income genuine and true? In the present case, it was decided that the documents and the claimed income were not genuine.

2. If the Respondent considered that the discrepancies were the result of dishonesty, did she clearly inform the Appellant of this fact and give him the opportunity to respond, both about his conduct and any other factors that were relevant and should be taken into consideration? In the present case, the court held that the requirement was satisfactorily met.

3. Provided that requirement 2 is met by the Respondent and that the Appellant responded to the Respondent, did the Respondent take that response into account before she concluded that the Appellant had been dishonest? In the present case, the court held that on the facts of the case, this requirement was amply met.

As a conclusion, the court ultimately held that the Respondent (the Secretary of State) had met all the relevant requirements and accordingly, the Appellant’s claim was dismissed.

Significance of the case and our comment

The decision in Khan v The Secretary of State for the Home Department means that any future applicant for Indefinite Leave to Remain is obliged to provide detailed, genuine and true evidence that supports the applicant’s claim that they have earned the necessary income.

If the Secretary of State can prove that they have given the applicant the opportunity to respond to the submitted claimed income that is or might not be ‘genuine’, the court will most likely to find that the Secretary of State had acted with impartiality and fairness.

This is especially true when the Secretary of State can show that they have taken into consideration the applicant’s response or any other relevant factors before concluding that the applicant had been dishonest. Accordingly, the court will be highly likely to refuse an applicant’s claim in such a scenario.

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Minimum service levels bill – what would this mean for trade unions and the right to strike?

Following a sustained period of strike action, the UK government has recently introduced a bill to parliament which would require certain public services to provide minimum service levels during strikes. The minimum service levels bill, officially titled the Strikes (minimum services) Bill 2022-2023, recently passed its second reading in parliament after being voted through by 309 votes to 249 votes. It was introduced by the Business Secretary Grant Shapps and will now go to the committee stage of the process.

The bill has been widely criticised by trade unions for being “anti-trade union” as it significantly curbs the power of a trade union to strike effectively. It would allow companies to sue trade unions and would also allow companies to sack workers if minimum service levels are not met. The government have claimed that the legislation is being introduced “to ensure that striking workers don’t put the public’s lives at risk and prevent people getting to work, accessing healthcare, and safely going about their daily lives”.

However, the bill is expected to face legal challenges by trade unions. The TUC, the UK’s national organisation of trade unions, have warned that the bill would worsen industrial relations between the government and trade unions and lead to more frequent strikes. The Labour Party have also promised to repeal the legislation if they get into power.

Keep reading to learn more.

What are the current trade union laws?

The current trade union laws are largely regulated by the Trade Union Act 2016.

Some of the most significant aspects of the Trade Union Act 2016 include the following:

Section 2 requires a turnout of 50% or more union members in a ballot for strike action
Section 3 requires that workers in important services (health, school education, fire, transport, nuclear decommissioning and border security) must gain at least 40% support of those entitled to vote in a workplace for a strike to be legal.
Section 8 requires a union to give an employer 2 weeks’ notice prior to industrial action
Section 9 limits the right to take industrial action after a strike ballot to six months, or nine months if the employer agrees.

There is currently no requirement for trade unions to provide a minimum level of service during a strike, however the Boris Johnson government did introduce legislation allowing business to hire agency workers during strike action. This measure has been firmly supported by Rishi Sunak’s government.

What are the trade union laws in other countries?

The government has justified the introduction of this law designed to restrict the power of Trade Unions in the UK by claiming that other countries in Europe also have legislation designed to ensure a minimum service level. So how do the countries that Prime Minister Rishi Sunak cited, France, Italy, and Spain compare when it comes to minimum service levels?

One of the main differences is the notice period required prior to a strike. As mentioned, in the UK this is 14 days. However, this differs in the other countries.

In France, workers have to give 48 hours’ notice before a strike
In Italy, it is ten days’ notice
While in Spain, ten days’ notice is required if the strike affects companies in charge of public services

In France, Italy and Spain, participating in a strike does not lead to being fired, however following the proposed UK legislation, workers could be forced to work and sacked if they do not.

While France has had minimum service level legislation in place since 2008, the levels are agreed through negotiations with trade unions. In contrast, the minimum services levels could give the UK Business Secretary the power to decide statutory minimum service levels across a range of sectors.

What are the key aspects of the minimum services bill?

The Minimum Service Levels Bill would give the Secretary of State for Business, Energy and Industrial Strategy Secretary the power to determine the minimum levels of service which must be maintained in a number of specified sectors.

These sectors would include the following:

Transport
Education
Health
Fire Rescue
Border Security
Nuclear Decommissioning

In addition to the Business Secretary hoping to form what they call “sensible and voluntary agreements” when it comes to minimum service levels, it would also have the ability to impose minimum service levels should they not be agreed.

Employers will be required to identify the number of employees which are required to continue working to ensure that minimum services levels are maintained. This will subsequently be communicated to the trade union via a work notice and such workers will be deemed “necessary workers”.

The trade union must take “reasonable steps” are ensure that the relevant employees who have been identified in the work notice comply with it. If they do not do so, the trade union risks losing their immunity from being sued under section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). In addition, any workers who continue to strike despite being identified as a necessary worker will lose their protection from automatically unfair dismissal. This has led to some criticism that the government have gone from “clapping nurses to sacking nurses”.

Our thoughts

While the intention of the bill to ensure that public services have a minimum service level may well be a noble idea, it is questionable as to whether it will achieve its intentions, as well as whether it will hold up to legal challenges. Should the bill go through in its current form, it is likely that it will be subject to legal challenge by trade union on the grounds that it breaches Article 11 of the European Convention on Human Rights (ECHR). This is itself codified in UK law through the 1998 Human Rights Act.

The right to strike is enshrined in Article 11 of the ECHR, which gives the right to “freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests”.

However, there is scope in Article 11 for restrictions to be placed on the right to strike where the restrictions are prescribed by law and “are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.” The interpretation of whether the legislation is “necessary” is therefore largely what its legality will hinge on. It is likely that some sectors, such as health, will be more enforceable than others.

It is also a substantial change to the way in which industrial action is able to take place across the entirety of Britain, and calls into question what the government calls their commitment to the right to strike by forcing workers to work on strike days.

Have questions about this article? Get in touch today!

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High Court rules that the EU Settlement Scheme is operating unlawfully – why?

By Jessie Yang

On 21st December 2022, the High Court delivered a judgment for a judicial review case relating to the EU Settlement Scheme which came about as a result of Britain’s exit from the EU in 2016.

This case was brought by the Independent Monitoring Authority (a statutory body set up to protect EU citizens’ rights in the UK) against the Home Office relating to the requirement in the EU Settlement Scheme (EUSS) for those with pre-settled status to apply for settled status after five years. It has some significant implications for those EEA nationals with pre-settled status.

The case was titled as follows: (R (on the application of Independent Monitoring Authority for the Citizens’ Rights Agreement) v Secretary of State for the Home Department (European Commission and another intervening) [2022] EWHC 3274 (Admin), [2022] All ER (D) 70.

Keep reading to learn more.

Background

The EU Settlement Scheme introduced by the Home Office in 2018. It requires EU citizens to submit an application under the scheme to continue to live in the United Kingdom lawfully.

According to the scheme, EEA Nationals who were residing in the UK before 31st December 2020 were required to apply to the Home Office in order to remain in the UK in reliance on their former rights. Those EEA nationals who had lived in the UK for five continuous years were granted Settled Status. However, EEA nationals who were not eligible to qualify for Settled Status under the scheme were granted pre-settled status (limited leave to remain for 5 years). In this case, they were required to make a second application to extend their leave before the expiry of their pre-settled status. If they did not do so, they would lose their residence rights and become unlawful residents in the UK as a consequence.

The Decision of the Court

The judicial review claim was considered by Mr. Justice Lane. His Lordship ruled that a right of residence can only be lost in very specific circumstances which are clearly defined in the EU Withdrawal Agreements (2020). Failure to make a second application as ‘required’ under the EU Settlement Scheme does not and could not constitute one of those very specific circumstances.

Although the Home Office submitted the claim that the specific requirement to re-apply was ‘merely procedural,’ the High Court rejected this claim and ruled that the consequences of failing to submit a second new application was so severe and significant that they could not be easily disregarded.

That being the case, Mr. Justice Lane declared that the EU Settlement Scheme is operating unlawfully. In summary, His Lordship determined two important points:

1. Individuals granted pre-settled status should not lose their rights by not making a second application.

2. Settled status rights accrue automatically without the need for a second application to upgrade rights. The right of settled status in the UK under Article 15 Withdrawal Act (2020) accrues automatically, once the conditions for obtaining the right have been fulfilled by an individual. It is unlawful for the Home Office to withdraw these rights where an individual fails to make a second application.

The Significance of the Ruling and Our Comments

The case has two potential consequences for those who made applications under the EU Settlement Scheme, namely, a) those granted pre-settled status could be given the ‘automatic rights’ to reside permanently in the UK once they have met the five year residence threshold without submitting a second application; b) those granted pre-settled status could also be automatically entitled to extend their stay in the UK upon expiry of their limited leave as long as they satisfy the requirements without making a second application should they are not eligible to apply for Settled Status.

It should be noted that the Home Office is highly disappointed with the High Court’s ruling and plans to lodge an appeal. The Home Office minister Lord Murray commented that ‘the EU Settlement Scheme goes above and beyond our obligations under the Withdrawal Agreement.’ Given this, it therefore seems highly likely that the issue regarding the lawfulness of the EU Settlement Scheme may be brought and decided before the UK Supreme Court in due course. Accordingly, it should be noted that until the appeals stage is over, and the final judgment is delivered, individuals with pre-settled status should continue to make a second application on expiry of their status in due course.

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Legal privilege – when is the right to confidentiality lost for data held on company servers?

Today’s article examines a case involving legal professional privilege, work emails and company servers. It provides a great deal of relevance to many businesses, as the issue of legal privilege in the context of work emails on corporate servers is one which arises regularly up and down the country.

In this case, the applicant made an application for electronic documents, which it argued that the right to privilege (right to confidentiality) did not extend to by those whose mailboxes the emails had originated from. This case provides an important lesson as to how this type of scenario should be examined.

Keep reading to learn more about this case and the lessons which can be learned.

Background

The case originates with MP & Silva Holding SA (MPS), a now dissolved company which was an international sports marketing and media rights firm that was order into administration by the UK High Court in October 2018. This came after the company missed payments to organisations such as the Premier League and the Scottish Football League.

Prior to this it was sold to the Chinese companies Everbright Securities and Beijing Baofeng Technology, who bought a 65% majority stake in the company in May 2016. This purchase was made through a strategic partnership, Jinxin, for $661m. It was following this purchase that the claims in deceit and unlawful means conspiracy are said to have arisen.

In around September 2018, soon before the company was ordered into administration by the UK High Court, Jinxin obtained copies of the personal electric mailboxes of a number of individuals from MPS. This included some of the defendants, who had been senior officers at MPS.

Following the acquisition of the electronic mailboxes, Jinxin and its lawyers, Herbert Smith Freehills (HSF) reviewed the material subject to various internal safeguards. These safeguards consisted of Jinxin’s internal team passing on documents to the matter team after reviewing potentially privileged documents. Jinxin’s claimed that in order to reduce the risk of its legal team reviewing privileged documents, they performed keyword searches were thought most likely to highlight documents through which the Tort Defendants (MPS) might claim privilege. Jinxin claimed that the keywords used were so extensive that approximately half of the 1.5m documents were quarantined, meaning that they could not be reviewed. These processes were questioned by MPS once they were discovered.

In the end the only application made by Jinxin was that none of the Tort Defendants could claim any privilege against Jinxin relating to documents held on MPS computer systems, in order to overcome the obstacle of being unable to review these documents. If the application succeeded, it would mean that Jinxin could proceed to review all the relevant documents it held without any further issues relating to quarantine. Jinxin argued that an essential pre-condition for privilege was not present in the documents stored on the computer systems of MPS.

Decision

The court refused to grant the declaration, as it did not have sufficient information to make it. The reason for this is that the judge held that there was inadequate evidence about the relevant documents in question.

The judge rejected the arguments made by Jinxin that the access to emails by IT staff, staff handbooks setting out the company’s right to monitor electronic communications, and the ownership of the servers, all pointed to a loss of confidentiality and a lack of privilege. However, the judge held that none of these factors prevented confidentiality from arising. Furthermore, the judge held that a reasonable person would assume that the location and exploitation of privileged material would not be included in a company’s right to access data on its servers.

The judge offered a solution from the case BBGP Managing General Partner Ltd & Others v Babcock & Brown Global Partners [2010] EWHC 2176; (Ch) that could be helpful in a situation like this. In the aforementioned case, the documents in question were reviewed by independent lawyers. This would go some way to overcoming the disclosure problem which arose in this case.

Our comments

The fact that some data/information were stored in company’s emails or other device does not automatically mean that the right of privacy or confidentiality is lost. Whether the right to privacy/confidentiality is lost depends on the particular facts of each individual case. Hence, in this case, the Court refused to grant the declaration sought by Jinxin, as it did not have sufficient information to make such a declaration. In situations like this, the safest approach to take is to work with other parties and to use an independent lawyer, rather than one on behalf of the employer itself.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

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Lease Dispute Involving a Seven-Figure Insurance Claim leads to another Successful Settlement

By Yitong Guo

We are delighted to have started 2023 with a successful settlement involving a seven-figure insurance claim.

This case involved us assisting a commercial landlord client on their insurance claim for an insured risk. We managed to secure full insurance payment from the landlord’s insurer despite the tenant’s alleged entitlement of such payment. During the negotiation process, we successfully assisted the parties to reach full settlement on the lease dispute and the insurance claim. Not only that, but we also assisted our client to sell their freehold interest (with a burnt site in situ) to a third party, as part of the settlement deal.

The caseworker for this case was Yitong Guo (Solicitor), while the case was led by Evveline Loh (Litigation Supervisor). Keep reading to learn more about the case.

Background

Our client, the landlord, is a company registered in the UK who held the freehold interest. The landlord had let two commercial units to the tenant on a short commercial lease agreement: one with a written commercial lease – unit A, while the other occupancy was entered through oral agreement – unit B.

Unit A was completely burnt to the ground due to a fire incident, while Unit B was able to continue to function despite minor disruptions. Hence, the tenant was able to continue to occupy the site while our client’s insurer compensated the tenant part rent and cost to connect the electric power.

Our client in the first instance (Unit A) proceeded to make an insurance claim for the insured risk and received a cash settlement offer from their insurer.

The tenant heard about the settlement and sent a pre-action letter to the client and their insurer threatening to take legal action and claiming they were entitled to a portion of the cash settlement for reinstatement of unit A. Numerous threats were outlined in their pre-action letter.

Issues

Our client was faced with several complex issues and the suitable resolution would require both legal consideration as well as commercial rationales.

1. Does it make commercial sense?

The most important point to our client is whether any settlement proposed would make any commercial rationale: does it make commercial sense to reinstate the unit and continue the lease?

This placed further questions as to whether the cash payment justified the costs of reinstatement, including:

Would the client make a loss if they were to proceed to reinstate the site?
What is the time scale for such reinstatement work to be carried out?
Will there be planning and building regulation obstacles?

2. What is the legal position as a commercial landlord?

In usual circumstances, it is indeed the landlord’s obligation to reinstate the premises (and/or the building as appropriate) following damage by an insured risk. However, in this case the question must be asked: was the client obliged to reinstate even if it would be impossible or impractical to do so? The apportionment of the tenant’s entitlement of the cash settlement was also an issue if the client was preparing to accept the pay-out.

3. Insurance

Was the settlement amount justifiable? Would the tenant be entitled to apportionment of the cash settlement?

Actions

On reviewing the lease agreement and insurance policy, we considered that although there might be different options for our client, the sticking issues here were the practicality of rebuilding unit A and to renew the lease as a landlord; and whether to sell the site without reinstating the unit and accept the amount of the cash settlement.

In order to answer these questions, we engaged and worked with a valuation assessor, quantity surveyor, and specialist legal counsel who provided expert reports on the separate issues in question. We had fully reviewed the lease, the insurance policy and the relevant laws and concluded that the lease clause did provide an option for termination of the lease if reinstating the burnt unit proved to be impossible or impractical, and the client might be in a strong position to do so with the supporting data.

Given we had sufficient evidence needed to advise our client on the legal practicality of the reinstatement of unit A and the likely outcome and risk on lease renewal as well as termination, our client was able to make an informed decision in relation to the above issues. We proceeded to action on our advice with an outlook to settle the dispute with the tenant, release our client’s obligation as landlord to reinstate the site, negotiate a sale of both unit A and B and restrict the tenant’s claim on the insurance settlement sum.

During our negotiation with the insurance company, there were a few points raised but what was more concerning was under-insurance.

Satisfying result

The negotiation was not easy. The first offer received in front us was for our client to transfer the site for no consideration to the tenant and to pay an apportionment from the insurance pay-out.

However, the end result was a satisfying one. After several rounds of negotiation, we manged to secure a full settlement on every aspect of the dispute: Our client’s obligation as landlord to reinstate was released; the site with the burnt down unit was sold at a competitive price as part of a larger scale corporate transaction, (thanks to our firm’s conveyancing expertise, we also acted for the client on this transaction). The insurance claim was successful and our client has received full pay-out with no deduction for any apportionment to the tenant. Should this matter have proceeded to court it would have cost our client considerable amount of legal fees and would have certainly carried more risks for the client.

Conclusion

This case truly reflects the skills we have in our team and our ability to focus on both the legal and commercial aspects. Our firm will always act in our client’s best interest. Our team possesses a rounded and coordinated skillset and our firm’s service to our clients goes beyond our legal expertise.

We strongly advise parties in dispute to try their best to resolve the issues before entering legal action. For their own benefit, court proceedings should be the last recourse to consider.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

lisaslaw@web

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Register of overseas entities – Lisa’s Law part of select group that can complete verification checks for you

In a bid to crack down on money laundering and improve transparency, the Economic Crime Act 2022 introduced a new Register of Overseas Entities. This came into force on 1^st August 2022. Those who do not comply will face severe sanctions, including restrictions on buying, selling, transferring, leasing or charging their land or property in the UK. As a result, overseas entities that own land or property in the UK must declare their beneficial owners and/or managing officers.

Lisa’s Law is one of a select group of UK-regulated agents who can complete verification checks on beneficial owners of an overseas entity. You can view the full list, including Lisa’s Law, here.

Why do I have to register with Companies House?

Before overseas companies can be registered with Companies House, which maintains an online register of companies, a UK-regulated agent must complete verification checks on all beneficial owners and managing officers. Overseas entities are defined in Section 2 of the Act as any legal entity that is governed by the law of a country or territory outside the UK. The Republic of Ireland is classified as an overseas jurisdiction for the Register of Overseas Entities.

In addition to this, the changes will also affect overseas entities who already own or lease land or property in the UK. Such companies must register with Companies House and tell them who their registrable beneficial owners or managing officers are by the end of this month (January 2023). This will only apply to overseas entities who bought property or land on or after:

1^st January 1999 in England and Wales
8^th December 2014 in Scotland

Furthermore, entities that disposed or property or land after 28^th February 2022 will need to give details of these dispositions.

Once you have registered with Companies House, as an overseas entity you will receive a unique Overseas Entity ID. You will be able to use this to give to the land registry when you buy, sell, transfer, lease or charge for UK property or land. The aim of this is to create more transparency, allowing law enforcement agencies to investigate suspicious wealth more effectively.

How to register as an overseas entity

To register as an overseas entity you must do the following:

Sign in or create a Companies House account
Provide the name and email address of the person who can be contacted about the application
Give information about the overseas entities and its beneficial owners or managing officers
Tell Companies House about the UK-regulated agent that completed verification checks (us if we complete it on your behalf)
Pay the £100 registration fee using a credit or debit card

When and if the application is accepted, the overseas entity as well the beneficial owners/managing officers will be added to the Register of Overseas Entities.

Please note that as of 12^th January 2023, failure to comply could mean getting a fine, a prison sentence, or both. You would also face restrictions when buying, selling, transferring, leasing or charging property or land in the UK.

Our comments

As a select group of agents who are able to carry out verification checks on beneficial owners of an overseas entity, Lisa’s Law can help to assist your business with these matters. Prior acquiescence towards the anonymity of foreign owners ends with the arrival of the register of overseas entities. Ultimately, its aim is to make it more difficult for foreign criminals to launder money through UK property. If you would like our help with these verification checks, please don’t hesitate to contact us using the methods below.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

lisaslaw@web

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Priority service returns for entry clearance family applications

The Home Office have formally announced the return of their priority service for family visa applications. This will once again enable applicants to have the option to pay for their application to be considered quicker. We have now received emails from the Home Office regarding pending applications, and whether the applicants want to pay £573 for priority service. This will result in their application being considered within 3 weeks.

The Home Office’s priority service for entry clearance application was previously suspended due to the Ukraine crisis following Russia’s invasion of the country. The Home Office prioritised their resources into considering applications received by Ukrainians who were trying to flee the conflict through the visa schemes like the Homes for Ukraine scheme. Without priority service being available, applicants were waiting 6 months, and in some cases more, for their applications for entry clearance to be considered so that they could join their family members in the UK.

No doubt this is a much-welcomed update for family members, who will now be able to reunite quicker thanks to the reintroduction of the priority service. As always, if you need assistance with immigration legal services, please don’t hesitate to contact us.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

lisaslaw@web

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