JOHN SZEPIETOWSKI Fri, 27 May 2022 09:48:24 +0000 en-US hourly 1 John Szepietowski provides an update on Investor Visa Applications Fri, 27 May 2022 09:48:24 +0000 The Home Office announced that the popular Tier One Investor Visa is no longer open to applications due to ‘security concerns’. This route was commonly used by high net worth individuals intending on investing in the United Kingdom with the benefit of obtaining immigration status in the country. The requirements state that the applicant needed to show that they (or their partner) had £2 million in their bank account that can be transfer to a U.K company if this had not been done so already.

The visa required a substantial financial investment in U.K based company that is registered with Companies House in the UK, is registered with HM Revenue and Customs for corporation tax and PAYE, has a UK bank account with both showing regular trading of its own goods or services, and has at least 2 UK based employees who are not its directors. Furthermore, the applicant ought to have provided evidence in the following forms:

As with other application routes, the Investor Visa was decided on a points-based system. The applicant needed 75 points to be eligible for the visa.

If the application is successful, the applicant will initially be granted limited leave to remain (however, this can lead to indefinite leave to remain). The initial visa lasts 3 years and 4 months and can be extended. However, if the investment was £10 million or more, settlement could be obtained after 2 years. If £5 million was invested settlement could have been obtained after 3 years and if £2 million was invested then the standard 5 years to settlement applied.

As stated above, the Home Office is not accepting new applications on the Tier 1 Investor Visa route however if you are already on this route, the Home Office has confirmed that you can still apply to settle in the United Kingdom, extend your current visa, or have your dependants join you in the United Kingdom.

Furthermore, the Home Office have indicated that they are intending on widening the scope of the Innovator route to provide a pathway for investors to the United Kingdom. It will be interesting to see how the reform will differentiate from the previous Tier 1 Investor Visa.

John Szepietowski reviews Family law proceedings Wed, 25 May 2022 16:27:36 +0000 Whilst family law proceedings are not open to the public, accredited media representatives are permitted to attend family court hearings and report on their findings. The scope of what the media are allowed to report on is fairly restricted however this may not be the case going forward.

For the majority of family law proceedings, reporters take no interest, however it is known that the media tend to invest time and resources into high-net worth or well-known celebrities. The open passage for media representatives to gain access into the most intimidate aspects of people’s lives often is met with concern. Whilst, there are alternative options such as private proceedings available, a judge may not always grant the permission to proceed on such a route. This leaves many famous divorcees vulnerable to media vultures and it is often questioned whether the media is at times used by parties to the divorce as a manipulative move to unsteady their ex-partner.

The President of the Family Division, Sir Andrew McFarlane released a report on 28 October 2021 titled Confidence and Confidentiality: Transparency in the Family Courts in which he states he shall be establishing the Transparency Implementation Group in order to implement changes to how and what reporters can publish surrounding family proceedings.

When questioning the benefit of the media’s attendance at family proceedings, the practical response is that it can be used to encourage parties to settle out of court and thus usually decrease costs, time and overall efforts involved. Furthermore, the outlook, on review of Sir McFarlane’s report, seems to be that the public confidence in the family courts will hopefully increase with further transparency however in reality public scrutiny of the court system may too rise.

Furthermore, Sir McFarlane proposes that the court ought to work with the media “to establish a relationship of trust and confidence”. This statement in itself may raise some eyebrows however the suggestion originated from Sir Nicholas Wall’s literature titled ‘Opening up the Family courts: a personal view’. This long-standing view may well come to fruition after Sir McFarlane’s report that details specific proposals together with the launch of the Transparency Implementation Group.

John Szepietowski reviews recent legislative changes Wed, 18 May 2022 16:30:30 +0000 In response to the latest tragedies Russia has enforced on Ukraine,  Parliament has expediated the passing of legislation that provides the U.K government with wider powers to enforce sanctions against Russian oligarchs. On 15 March 2022, the Economic Crime (Transparency and Enforcement) Bill (“The Bill”) received Royal Assent.

One of the primary notions behind The Bill is to establish a register of overseas ownership of land and property in the United Kingdom. Furthermore, The Bill will introduce sanctions and penalties for those avoiding or omitting details from the registrar, the aim seems to be to uncover the true proprietors of vast wealth roaming throughout the country. With much of the country’s fortune being held by overseas shell companies, with a suspected link to Russian oligarchs, the government have decided now is the time to push back on anonymous foreign monopolisers.

The thought behind the register is to uncover money laundering experts and take down senior mob bosses although, a simple register is questionably not powerful enough to do so. Without a backing of investigations and appropriate identity checks in place, it is likely the powerful enigmatic oligarchs shall find a loophole to continue their dealings. Furthermore, the new rules provide six months for overseas companies to adhere however like a chess game, your opponent is always thinking three steps ahead.

The Bill also tackles Unexplained Wealth Orders and provides further support to the National Crime Agency (‘NCA’) with enhancing its asset recovery powers. The Bill also aims to minimise the hefty legal fees the U.K. taxpayer affords each time the NCA attempts to prosecute someone with a suspected illegitimate source of wealth.

The Bill is also looking to call professionals such as lawyers and accountants to a higher standard and to hold them accountable if the ultimate beneficial owner fails to be registered. The additional weight on legal advisors to do their own investigations is undoubtedly going to ruffle some feathers in the legal world.

For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email or visit our Linkedin page.

Larissa Bourgi

This information was correct as at April 2022

John Szepietowski considers the Ukraine Family Scheme visa Mon, 16 May 2022 08:14:40 +0000 Given the recent tragic events taking place in the European arena that has swept the world off its feet, the UK Home Office has made special provisions allowing for Ukrainian nationals and their family members to relocate to the United Kingdom by applying to the new Ukraine Family Scheme. The scheme bears similarities to the EU Settlement Scheme and is free to apply. The application is also open to those already in the United Kingdom on the condition that they meet the necessary criteria.

In order to be eligible, the candidate must be Ukrainian, or the immediate family member of a Ukrainian national applying. Furthermore, the applicant must have been residing in Ukraine on or immediately before 1 January 2022. Lastly, the applicant must be applying to join a UK-based family member. Submitting evidence of your relationship to the UK-based family member is advised in order to avoid delays.

Whilst the Home Office have stated they are prioritising Ukraine Family Scheme visa applications, there have been numerous complaints that the application process is too long-winded given the current state of affairs. However, if granted, the visa allows the applicant to stay in the United Kingdom for up to three years and provides them with the opportunity to live, work, study and claim public funds.

The response of the Home Office, whilst apt, undoubtedly shows the disparity between European refugees fleeing the Russian invasion with the Middle Eastern refugees fleeing their war-torn homes. It is important to note that no similar response was given by the UK Government to the refugees of Syria, Lebanon, Palestine, Afghanistan, Iraq and others. The horrific incidents taking place now in Ukraine, are too taking place around the world but the United Kingdom seems not to show the same level of sympathy to all.

John Szepietowski reviews SCOR SE v Barclays Bank Plc – [2020] Ewhc 133 (Comm) Fri, 07 Jan 2022 13:31:31 +0000 The matter concerns the jurisdiction of French courts over matters disputed in one of England’s Commercial Courts. By way of background, the Claimant in the matter is a French reinsurance company, SCOR SE who has issued two sets of proceedings in France, and one in England. The case concerns a third party, Mr Derez who was a director of the Claimant company as well as a chairman of two other companies referred to as Covéa.  Covéa was a shareholder of SCOR SE and expressed intention to acquire a majority share in the company. Barclays Bank plc was a prospective lender in the proposed acquisition as well as a financial advisor to Covéa. The Claimant avers Mr Derez disclosed confidential information to Covéa and Barclays Bank plc who is the Defendant in these particular proceedings.

The application made by the Defendant put forward to the Queens Bench Division of the High Court of Justice Business and Property Courts of England and Wales was to request a stay pending the outcome of the related proceedings in France under Article 30 of Regulation (EU) 1215/2012 or under the Court’s case management powers. The basis of Barclays Bank plc’s application was that the proceedings were relating to French criminal proceedings.

The Court’s analysis of the case included whether the Commercial Court proceedings related to the criminal proceedings subsequently taking place in France. Through a thorough examination of precedential law, Christopher Hancock QC referred to Sarrio SA v Kuwait Investment Authority [1999] 1 AC 32 and the subsequent cases of Research in Motion UK v Visto [2008] 2 All ER (Comm) and Privatbank v Kolomoisky [2019] EWCA Civ 1709 in his decision. The Judge followed suit of the most recent case of Privatbank v Kolomoisky that reinforced the principles of Sarrio SA v Kuwait Investment Authority and found there was a relationship present between the proceedings.

Despite the Judge finding the proceedings related, this was not preventative in application his discretion to the case. By applying Euroeco Fuels (Poland) Limited and others v Sczezin and Swinoujscie Seaports and others [2019], the judge refused to grant the Defendant’s application to stay the English proceedings on the basis that the cases can in fact be tried together.

John Szepietowski discuss Marks & Spencer’s legal action against Aldi for copycat Colin the Caterpillar cake Fri, 26 Nov 2021 16:28:40 +0000 The iconic caterpillar is well-known across the nation for making its appearance as the highlight of celebrations on a child’s birthday since 1990. More recently in 2019, a similar caterpillar surfaced amongst the supermarket chain Aldi, giving rise to claims of copyright infringement by Marks and Spencer.  Infringement in simplistic terms refers to the act of one using another’s intellectual property without obtaining the owner’s permission.

Many find it had to source the indifferences between the original Colin the Caterpillar cake and its younger adversary Cuthbert the Caterpillar with many members of the public speculating about which of the two cakes are superior. The media attention to this matter has spread nationally as the public is divided on Marks and Spencer’s legal action against Aldi. Both supermarket chains have taken to social media to address the caterpillar cakes alikeness with Aldi recently posting on social media their plans for sale proceeds to be in benefit of Teenage Cancer Trust and Macmillan Cancer Support in what one may deem to be a tactical manoeuvre on Aldi’s part. Those conscious of Colin the Caterpillar’s reputation may also be aware that it has been a larger benefactor for Macmillan Cancer Support with the cake being produced for the Annual Biggest Coffee Morning fundraiser.

Marks and Spencer issued proceedings for trademark infringement against Aldi in April earlier this year. Marks and Spencer have registered trademarks for the wording “Colin the Caterpillar” and “Connie the Caterpillar” together with the packing for Colin the Caterpillar. By issuing a trademark infringement claim, it is arguable that Marks and Spencer have a greater chance of succeeding than if they were to make a claim for passing off. In the most likely scenario, Marks and Spencer would be averting Aldi’s Cuthbert the Caterpillar is similar to Colin the Caterpillar and thus amounts to an infringement of the trademark. Upon assessing both the name of the cake and its packaging, one can understand Marks and Spencer’s claim and the possibility that Aldi receives benefits on Cuthbert’s similarity to Colin. Aldi is not a newcomer to infringement claims in the United Kingdom, with a claim made against them by Moroccanoil Israel Ltd in 2014 and a more recent case of Islestarr Holdings Ltd v Aldi Stores Ltd [2019] EWHC 1473(Ch) whereby Islestarr Holdings Ltd successfully obtained a summary judgment against Aldi for copyright infringement for its pressed powder beauty product.

John Szepietowski considers Artificial Intelligence and its impact on the legal world Wed, 17 Nov 2021 12:23:02 +0000 The term Artificial Intelligence can be defined as the simulation of human intelligence by machines, especially computers. In this digitally evolving era where computers, mobile phones, and tablets consume an abundant amount of time in our daily lives, the impending impression that looms over the world is that the era of machines controlling the human race is nearing a rapid speed. With that in mind, most great engineers of this generation are using their skills to harness the anthropoid-like technology to assist a variety of fields across the globe.

A considerable beneficiary of this technology is the legal world as Artificial Intelligence is being used to serve those in the legal profession and throughout the justice system. A prime example of Artificial Intelligence being applied to criminal matters is facial recognition systems which are used by the police to identify potential suspects amongst crowds of people. However, this technology has faced backlash as claims against its accuracy of detecting persons of a certain race. The erroneous use of this elite technology has succumbed to endless queries of the place of Artificial Intelligence in line with the elevated level of ethical standards lawyers are held to in the United Kingdom.

As with all other developments, statutory law must adapt and expand to encompass and rule with regard to each new sect of life. With the growth of Artificial Intelligence comes the evolution of law providing a legal framework for the use of digital innovation as well as ensuring safeguards are in place to protect the public. A prime example of the law progressing to accommodate the digital age is the implementation of the European Union General Data Protection Regulations that aims to protect people’s personal data.

A further risk which Artificial Intelligence aggravates is the possibility of negligence claims. As every solicitor is aware, all work must be inspected thoroughly to ensure the client receives accurate and up to date advice. With digital instruments requiring constant updates themselves, together with technical issues being a presiding frustration amongst technology, the potential for negligence claims to escalate is sincerely problematic.

With taking into thought, the above issues, one must also realise the very possible and probable solution in the improving world we reside in, that with every generation of the device, comes a newer, better, and less problematic version. There is no doubt that Artificial Intelligence, does and will increasingly continue to play a pivotal role in our lives, particularly in the legal world.

John Szepietowski reviews R (Heathrow Airport) Limited & Ors v Her Majesty’s Treasury & Anor [2021] EWCA Civ 783 Thu, 11 Nov 2021 16:51:37 +0000 The monumental matter of the abolition of the preponderance of VAT-free purchases faced strident resistance from a number of sources. Heathrow Airport, known as a notorious venue for the masses to indulge in the ultimate duty-free shopping experience, along with Global Blue (UK) Ltd and WDFG UK Ltd (the Appellants) took their grievances to the High Court (Divisional) Court and the Court of Appeal (Civil Division) after falling short in the nether courts.

The Appellants’ case was heard before Lord Justice Green and Mrs Justice Whipple who reviewed the grounds of challenge put forward and summarised these to four encapsulating points. Firstly, the Appellants sought to rely upon the constitutional power of the Commissioners of HM Customs and Excise to grant tax concession ultra virus. The court rejected this ground by supporting the government’s application of R v Commissioners of Inland Revenue ex parte Wilkinson [2005] UKHL 30.

Furthermore, the Appellants directed the court’s attention to Article I:1 and III:2 of the General Agreement on Tariffs and Trade 1994 and averred the legislation applied to internal taxation with an impact on exported goods. The Government had utilised the legislation for the avoidance of alternative approaches that may have subsided the negative impact on the Appellants. The Justices emphasised this was a matter of law and not fact, therefore, also dismissed this ground.

The third ground emphasised by the Appellants also concerned the Trade and Cooperation Agreement entered into by the government on 26 December 2020 that was implemented into the European Union (Future Relationship) Act 2020. The Appellants’ position was the government failed to address the existence of a free trade agreement and make the appropriate alterations. The court concluded that it would not consent to the Appellants’ suggested amendment due to the lack of merit.

The Appellants lastly averred that Mr Justice Swift was incorrect in refusing to grant permission to challenge the decision on the basis of evidential grounds due to the supporting evidence provided by the evaluation of the economic impact arising from the termination of untaxed shopping. The Justices concurred with Mr Justice Swift and refused to give permission to appeal.

John Szepietowski discusses the EU Family Permit Fri, 29 Oct 2021 09:41:37 +0000 Family members of citizens of the European Union may be eligible to qualify for an EU Family Permit to visit the United Kingdom for six months to see their family. The EU Family Permit is set to continue indefinitely and is open to both direct and indirect family members of both EU and non-EU citizens residing in the United Kingdom under the EU Settlement Scheme.

As most are aware the deadline for applying to the EU Settlement Scheme passed on 30 June earlier this year leaving several families concerned about requiring a visa to visit their families. The EU Family Permit may otherwise be known as a simplified visa system whereby family members can apply online and receive their results usually within three months of making the application. Processing times have been delayed due to the vast number of applications since the route became available.

The scheme brings about many benefits for both EU and non-EU citizens who may enjoy similar benefits to those enjoyed prior to the United Kingdom leaving the EU. A major benefactor in comparison to the traditional visitor visa route is the financial aspect. Applications for the EU Family Permit are without charge, save for any payments required to attend biometric appointments.

Furthermore, the application itself requires minimal requirements to be satisfied. Firstly, there must have been an existing relationship with an EU citizen resident in the United Kingdom prior to 31 December 2021. Additionally, this resident must be providing either emotional or economical support to the family member outside the country. This support has not at the time of writing been quantified by the government, therefore, this provides a wide scope for applicants to satisfy this particular requirement. It is notable to bear in mind where candidates have previously applied for visitor visas stating their financial independence and the questionable shift to being dependent on their family members.

An additional benefit, in comparison to the standard visitor visa, is the ability for the successful applicant to both work and study in the United Kingdom and enter the country on multiple visits prior to the six-month expiry. A further advantage is brought about by the ability to apply for the EU Settlement Scheme once in the United Kingdom. Although the EU Settlement Scheme remains open for those not resident in the United Kingdom, by entering the country with an EU Family Permit, the permit holder is able to apply for the scheme within three months of the date of entry. This will allow joining family members to obtain a five-year visa without the charges associated with the EU Settlement Scheme.

John Szepietowski reviews Consumer Contract Regulations and pitfalls for traders: What are they and when do they apply? Tue, 26 Oct 2021 08:33:50 +0000 The Consumer Contracts Regulations 2013 (‘CCR’) apply to the vast majority of situations where a trader enters into a commercial relationship with a customer. The CCR will apply in all situations, regardless of whether you have a formal written contract, a verbal contract or even just an implied contract.

The CCR do not apply in a small number of specific and limited circumstances, importantly where the relationship is respect to the construction of a new building or redevelopment of an existing building into a substantially new building.

What is a Trader?

A trader is defined by the CCR as ‘a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf’. Business is defined to include the activities of any government department or local or public authority.

In the case of BKK Mobil Oil Körperschaft des öffentlichen Rechts v Zentrale zur Bekämpfung unlauteren Wettbewerbs eV (Case C‑59/12) EU:C:2013:634), the European Court of Justice (‘ECJ’) considered the definition of ‘Trader’ in the CCR. The ECJ commented that “the concept of trader which is used in that directive must be determined in relation to the related but diametrically opposed concept of ‘consumer’, which refers to any individual not engaged in commercial or trade activities”.

What is a Consumer?

Established by the Consumer Rights Act 2015, a consumer is defined as ‘an individual acting for purposes that are wholly or mainly outside that individual’s trade, business craft or profession’.

Businesses, such as limited companies are not capable of being consumers and as such are excluded from the CCR, as everything that a corporate entity does is ‘for the purposes of its trade’.