Lisa’s Law helps to secure indefinite leave to remain for client despite long absence period due to Covid

We have recently been successful in an application for indefinite leave to remain on the 10-year route. Our client made an application based on exceptional circumstances outside the immigration rules and was granted settlement status despite 966 days outside the UK.

This case demonstrates the approach which the Home Office may take towards cases where not granting settled status would have a significant impact on the claimant and their family. It also gives an example of the impact of Covid-19 on the interpretation of immigration law.

Background

Our client arrived in the UK via a child student visa in 2012, where she began to receive the British education from the age of 12. She had a smooth transition to life in the UK, and faced few obstacles until 2020, with the outbreak of Covid-19. Like a lot of other international students, she returned to China to be with her family. Our client then returned to the UK in September 2022 via a new student visa, when by this point Covid-19 restrictions had been lifted by the UK government.

By our calculation, our client’s absence from the UK totals 966 days, with the last absence of 433 days taking place from 2020 to 2022. We made the application for the client on the basis of 10-year lawful residence outside of the rules on absence for settlement that requires up to 540 days in total and 180 days for a single absence.

The application

In our legal representation letter, our core submissions were as follows:

1. We argued that the last absence period to China which totals 433 days should be regarded as an exceptional circumstance. We focus on the strict circuit breakers between China and the UK implemented by China, demonstrating the rationality for this 433-day absence.

2. We argued for our client on the grounds of her private life established in the UK over the past decade. Our client has been in the UK since childhood, receiving a British education and forming a social network. These are proven by her graduate certificates, social events and her own property in London.

There was some correspondence between the next day of biometric submission and the decision date. We provided additional information and evidence the next day or the same day, in part thanks to our client’s timely assistance. The most important document provided was the cancelled flight ticket, which demonstrated the client’s original intention to come back to the UK instead of taking Covid as an excuse for the long absence.

The approved decision was received the week after providing our client’s biometric information due to our client choosing the Home Office’s priority service.

Our comments

This case demonstrates the fact that the Home Office has accepted that the absence period during the Covid pandemic can probably be disregarded. This successful settlement application is significant to our client and her family. If it was rejected by the Home Office, it would lead to a seriously adverse impact on both the life established in the UK of our client, as well as the devotion and support from her family back in China. We are very pleased with the result, as our client has been granted settlement after her long absence from the UK during the Covid-19 restrictions.

Have questions about this article? Get in touch today!

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Register of overseas entities deadline has passed – what now?

We previously brought you news of the register of overseas entities deadline, which you can read more about here. This deadline passed on 31^st January, and overseas companies which have failed to register now face the possibility of sales restrictions and tough fines, according to the Department for Business, Energy and Industrial Strategy’s latest press release. Lisa’s Law is one of a select group of UK-regulated agents who are able to complete verification checks on beneficial owners of an overseas entity. This involves completing verification checks on beneficial owners of an overseas entity The full list is available on the government website here.

Following the deadline on 31^st January, it has been revealed that an estimated 19,510 out of a total of 32,440 register overseas organisations have declared their beneficial owners. According to the government, the register will help to bring transparency to offshore trusts, something they often lack due to frequently being used to obscure assets for tax purposes.

Haven’t already registered? Contact us right away. The government has announced that they are now assessing and preparing cases for enforcement action, so any time wasted at this point could be hugely costly for you and your business. The UK government have made it very clear that they are serious about individuals using UK property to launder wealth.

Keep reading to learn more about the register of overseas entities, what will happens to overseas entities which fail to register, as well as potential issues with the register in terms of increasing transparency of property ownership.

What is the register of overseas entities? A reminder.

The Register of Overseas Entities was introduced by the government on 1^st August 2022 in an attempt to crack down on corruption by overseas entities. Following the introduction of the register, overseas entities that own land or property in the UK must declare their beneficial owners and/or managing officers. Entities which do not register face the possibility of getting a fine, a prison sentence, or both, as well as restrictions on buying, selling, transferring, leasing or charging their land or property in the UK.

The government has recently made a concerted effort to better crack down on corruption, a timely intervention given London’s reputation as the money-laundering capital of the world. This has coincided with Russian’s invasion of Ukraine, with the UK government cracking down on Russian oligarchs who often resided in London.

The Economic Crime and Corporate Transparency Bill comes under this approach towards cracking down on corruption, with the bill currently making its way through Parliament. Its intention is reportedly to “make provision about economic crime and corporate transparency; to make further provision about companies, limited partnerships and other kinds of corporate entity; and to make provision about the registration of overseas entities.”

What happens now?

Once you have registered with Companies House as an overseas entity you will receive a unique Overseas Entity ID. Beneficial owners and managing officers will also be added to the register. You will be able to use the Overseas Entity ID to give to the land registry when you buy, sell, transfer, lease or charge for UK property or land. However, if your application is rejected then Companies House will notify you of what to do next and also refund you the £100 registration fee.

It’s important to point out that, like many registers, you will need to notify Companies House with any changes. This will be done on an annual basis, and not only will you be required to let them know of any changes, but also to ensure that the information held is still correct. This must be done no later than 14 days following the anniversary of the initial registration.

In some cases you might find it necessary to remove yourself from the register of overseas entities. This may be the case if you are no longer a registered owner of land or property in the UK.

Potential issues with the register of overseas entities

As of now, there are still thousands of properties which are undeclared in terms of who owns them. Transparency International, a non-profit which aims to increase transparency and reduce corruption, recently released analysis which found that nearly 52,000 UK properties were still owned anonymously despite the new laws. This translates as 18,000 offshore companies, near half of the offshore companies required to register having not done so. You can read Transparency International’s full report here.

Some organisations like Transparency have criticised the laws for not going far enough, raising concerns that there are potential loopholes within the register of overseas entities which could allow offshore companies to avoid the rules. One particular issue is that 12 per cent of companies which have filed information claim to have no beneficial owners, ensuring that the identity of, for example shareholders in the company remains a secret.

Our thoughts

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. The government have made it clear that they will take action on overseas entities which do not register by pledging to introduce fines and prison sentences against those individuals.

Ultimately, the aim of the register 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. Read our previous article for the full guide to how to enrol on the register of overseas entities.

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.

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Do I have rights in the matrimonial home if it’s in my spouse’s sole name?

By Chevonne Lin

The matrimonial home is undoubtedly one of the most valuable family assets one will own. As a consequence, people will often have a lot of questions and concerns about what might happen to it in the event of a divorce.

As you would expect, the law varies depending on the ownership of the property. Normally, if the property is held jointly between the parties, one party has to have the consent of the other party if they want to sell or mortgage the property. However, if there is a party who is not a legal owner of the property, they might be particularly concerned as they might feel that they are in a vulnerable position. Keep reading to find out how the law protects the non-owning spouse in such situations.

Matrimonial Home Rights

The non-owning spouse is protected under Section 30 of the Family Law Act 1996 (FLA 1996) against eviction from the matrimonial home, which means that they have the right to occupy the family home. Please note that even if the spouse owns an equitable interest (i.e., right to occupy), they are still not a legal owner of the property and are still considered to be “non-owning”.

Section 30(2)(a) of the FLA 1996 explicitly states that, “If in occupation, [the non-owning party has] a right not to be evicted or excluded from the dwelling house or any part of it except with the leave of the Court”.

It is important to note that such rights terminate on the death of the owning spouse or on the grant of a decree absolute or final order. However, the Court can exercise its powers under Section 33(5) of the FLA 1996 and extend such rights beyond these events.

If the non-owning spouse wants to safeguard their interest, they should register their matrimonial home rights so that they bind any subsequent buyers and lenders. Once the notice is registered with HM Land Registry, it will appear on the title register of the property. That will prevent the owning spouse from selling, transferring, or mortgaging the property without the non-owning spouse’s consent.

Occupation Orders

An occupation order generally gives an excluded person the right to live in the home or it can be used to give a person the right to continue to remain in the home. Whether the non-owning spouse has rights to apply for an occupation order under the FLA 1996 depends on their status at the time of applying.

If the non-owning spouse has an existing right to occupy the home, he/she would be able to apply for an occupation order under Section 33 of the FLA 1996. The non-owning spouse may have this right because they have an interest or statutory entitlement (for example, the matrimonial home rights under Section 30 of the FLA mentioned above). The home must also have been the home of the couple.

The factors the Court will consider when deciding whether to grant the order are contained in Section 33(6) of the FLA, this includes, (a) the housing needs and housing resources of each of the parties and any child; (b) the financial resources of each of the parties; (c) the likely effect of any order, or of any decision by the Court not to make such an order, on the health, safety or well-being of the parties and any relevant child; and (d) the conduct of the parties in relation to each other and otherwise.

The Court will also have to apply the balance of harm test contained in Section 33(7). It states that if the applicant or relevant child is likely to suffer significant harm attributable to the conduct of the respondent if an occupation order is not made, the court shall make such an order. The case of Chalmers v Johns clarified the approach the Court should take when making such orders. The applicant must demonstrate that he/she would suffer significant harm due to the respondent’s conduct before the Court applies the balance of harm test. If the applicant cannot prove he/she will suffer such harm, the Court will determine the case on the basis of the Section 33(6) factors alone.

An occupation order under this section can be made for a specific period of time or until the occurrence of a particular event. If the applicant has no existing right to occupy the home and the other party has such a right, whether the applicant can apply for an occupation order depends on whether they are a former spouse or cohabitant. But as we are not considering the rights of couples who are not legally married at the time of application in this article, that is outside our scope of discussion.

Preventing Disposals

The non-owning spouse can apply for an injunction from the Court to prevent the owning spouse from disposing the property under Section 37(2)(a) of the Matrimonial Causes Act 1973 (MCA 1973). “Property” in this context is defined widely to include houses and any personal properties such as funds in bank accounts, yachts, furniture etc. However, in order to apply for an injunction, the non-owning party must already have made an application for financial relief under the MCA. The Court may grant an injunction if there is concrete evidence to show that the owning party is about to dispose of the property with the intention of defeating the claim for financial relief, or if he/she has the intention to delay or frustrate its enforcement.

Setting Aside

If the non-owning spouse only knows about the disposition after it has taken place, they can apply for an injunction from the Court to set aside a reviewable disposition under Section 37(2)(b) of the MCA 1937. The Court needs to be satisfied that the owning party has made a reviewable disposition with the intention of reducing the amount of any financial relief which might be granted, or frustrating or impeding the enforcement of any order.

A “reviewable disposition” is one that is not made for valuable consideration to a bona fide purchaser. An example of this would be if the owning party gifted and transferred the matrimonial home to his friend, the Court would be able to set this aside as it was not made for valuation consideration.

In situations where the reviewable disposition is made after financial proceedings have concluded, if it was made with the intention of frustrating enforcement of an order for financial relief, it could also be set aside under Section 37(2)(c) MCA 1973.

If you have any questions or want any advice on this, please don’t hesitate to contact us. Our team of specialist family law solicitors have many years of experience and will be able to give you the help you need.

Have questions about this article? Get in touch today!

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To what extent can a prenuptial agreement determine the outcome of financial provisions following divorce?

By Xinlei Zhang

January may be behind us, but despite its status as the most popular month for divorce, that certainly doesn’t stop us bringing you the latest developments in divorce law throughout the rest of the year.

This article is no exception. Today, we take a look at a common aspect of marriage, prenuptial agreements – commonly known as prenups. This is a topic we have looked at in some detail before. However, this time, we will focus specifically on whether prenuptial agreements can determine the outcome of financial provisions of divorce.

Prenuptial agreements have become more and more popular in recent times. But as you might know, the agreement made between the couple cannot supersede the jurisdiction of the Court to make financial orders under the Matrimonial Causes Act 1973.

So, if you sign a prenuptial agreement, does it prevent the Court from making financial orders which are inconsistent with the terms in your agreement? A recent family remedy case, HD v WB [2023] EWFC 2 considered this very question.

Keep reading to learn more.

Background

In this case, the Wife (W) and Husband (H) started their relationship in 1996 and started living together at around the same time. The relationship broke down in 1999. In 2001, H and W resumed living together and got engaged in 2003. In 2008, they moved to a property in England purchased by W, the purchase was funded by a £4m loan from W’s family trust. Besides this, there was substantial financial support from W’s parents during the relationship, which was derived from W’s family business.

On 26 July 2014, H and W got married and signed a pre-nuptial agreement on their wedding day. During the marriage, all assets were held in separate names, but almost all of the assets were held entirely under W’s sole name. This included the family home which was purchased with the sale proceeds of the property mentioned above, some investment properties the W bought and liquid cash and investments in the W’s sole name. The matrimonial pot in total exceeded £43m. The Wife was the main contributor financially, and most family expenses were paid by her. The parties separated in December 2020.

One of the issues, in this case, is about the Pre-Nuptial Agreement entered into by the parties on their wedding day and its relevance when it comes to the appropriate financial provisions. The main agreed terms are 1) W and H wanted to retain their separate property; 2) The parties’ pre-marital assets under their sole name and assets held in their respective ownership acquired during the marriage by way of gift or inheritance would remain in their beneficial ownership; 3) H had no beneficial interest in the matrimonial home, or any new property which was subsequently purchased with the proceeds thereof; but H shall receive a certain share of the net profit in the family home index linked in accordance with the Retail Prices Index. 4) H is entitled to a sum based on a sliding scale depending on the number of years of marriage.

Is the Pre-Nuptial Agreement valid?

H’s position is that the Pre-Nuptial Agreement should be disregarded as it was entered into in undue haste, with no legal advice and insufficient disclosure, and it was not able to reasonably meet his needs. W disagreed and maintained that a) H did know about the purpose of the Pre-Nuptial Agreement as he made amendments to W’s draft, and b) H was told he should consult legal advice and had the opportunity to obtain such advice.

The Court did not agree with H. The Court commented that ‘H signed up to provisions which he understood but did not think would ever bite. H, now appreciating the consequences and regretting having signed it, seeks to cast doubt on the Pre-Nuptial Agreement, and in so doing has misrepresented what took place.’ The Court was satisfied that H was fully engaged in the process, he knew what the purpose of the Pre-Nuptial Agreement was and he also knew that W’s assets came mostly from her family. The Court also decided that H did, in fact, have the opportunity to obtain legal advice but failed to do so. The Court concluded that the Pre-Nuptial Agreement was freely entered into by each party, with a full appreciation of its meaning and consequences.

Should the Pre-Nuptial Agreement determine the outcome?

During the financial proceedings, W offered H a sum of £362,500 which she believed represented what H was entitled to under the Pre-Nuptial Agreement, and she also offered a further £2m for a housing fund for H but on a trust basis (the housing monies will revert back to W eventually). However, H wanted £8m so that his housing and income needs could be met.

The Court decided that the Pre-Nuptial Agreement should not be fully upheld and that the outcome should not be determined solely by such an agreement. It is the Court’s view that the amount under the Pre-Nuptial Agreement would not reasonably meet his housing and income needs, especially when considering maintaining a similar lifestyle he enjoyed during the relationship for around 20 years. Therefore, the Court concluded that it is reasonable to depart from the Pre-Nuptial Agreement. In the end, the Court ordered a sum of around £1.9m (4% of the liquid wealth), plus a housing fund of no more than £2.5m which will eventually revert back to W on H’s death.

The Court commented that had the parties married without signing a Pre-Nuptial Agreement in the first place, H’s award would have been significantly higher.

Our thoughts

It is advisable to enter into a pre-nuptial agreement as it can be an effective way to protect assets that you may have had prior to the marriage, or to protect certain family assets. It can also give more certainty to financial arrangements in the event of divorce. However, it is important to know that pre-nuptial agreements cannot override the Court’s ability to decide how your finances should be divided in a divorce.

As we can see in this case, the needs of the parties can justify a departure from the agreed prenuptial agreement. The Court normally considers, at the time of divorce, whether the prenuptial agreement signed is still fair and can provide for both parties’ financial needs. Financial needs are unpredictable in advance, circumstances might change, what may have been fair at the time of the agreement might not be considered fair at the time of divorce if your or your spouse’s circumstances have changed significantly, i.e. reduced earning capacity.

When it comes to the appropriate award in financial proceedings, it is the Court’s obligation to look at all the circumstances of the case and make a decision that not only reflects a proper recognition of the consequences of the Pre-Nuptial Agreement but is also balanced against all the other s25 criteria, in this case, it included looking at the scale of wealth, the parties’ earning capacity and resources, the duration of the relationship and contribution to the welfare of the family, but especially the parties’ needs.

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.

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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.

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.

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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.

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.

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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.

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.

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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.

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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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!

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

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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.

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!

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