JOHN SZEPIETOWSKI https://www.szepietowski.com Wed, 01 Feb 2023 17:24:10 +0000 en-US hourly 1 https://wordpress.org/?v=5.7.6 John Szepietowski discusses Northern Ireland Protocol Bill and EU legal action https://www.szepietowski.com/john-szepietowski-discusses-northern-ireland-protocol-bill-and-eu-legal-action/ Wed, 01 Feb 2023 17:24:10 +0000 https://www.szepietowski.com/?p=1749 As part of the EU-UK Withdrawal Agreement that came into force on 01 February 2020, the UK are supposed to apply specific border arrangements with Northern Ireland. This included applying customs and tax rules on trades, set up border inspection posts and share trade data with the EU. However, the British government have stated that applying these arrangement has been too disruptive. Whilst the UK are currently in talks with the EU to fix problems with the protocol, talks have stalled. Liz Truss, then Secretary of State for Foreign, Commonwealth and Development Affairs, has stated that the preferred course of action would be to solve the Brexit trade arrangements by negotiations. However, the EU have refused to reopen the text of the agreement. As such, legislative action is necessary.

The Northern Ireland Protocol Bill (the Bill) is at the Report stage in the House of Lord. This Bill would allow the UK to remove some of the border arrangements without getting EU approval. Specifically, the Bill aims to create a “green channel”, for goods bound from the UK to Northern Ireland. This will mean that goods that pass through this channel will be free from the current impractical and disruptive checks. The Bill would, also, give UK ministers more control over tax and spending policy in Northern Ireland.

Many people have voiced their opposition to the Bill. This includes David Lammy, shadow foreign secretary, who claims the Bill is fixing minor issues but threatening serious consequences to the UK’s reputation as a law-keeper and to its relationship with the EU. These fears have started to apply as the EU have bought a variety of legal claims against the British government. Cases in the European Court of Justice (the ECJ) usually take years to be heard. However, when these cases do get heard, heavy fines could be handed to the UK by the European Court of Justice.

It is worth noting that the most important factor to keep updated on is the development of the Bill. If this becomes UK law and the UK government starts to unilaterally change parts of the treaty, the EU will take a more serious course of action. This could see trade sanctions being implemented against the UK.

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 admin@audleychaucer.com or visit our Linkedin page at https://www.linkedin.com/company/audley-chaucer-solicitors/.

John Szepietowski

This information was correct as of November 2022

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John Szepietowski discusses Contempt of Court in reference to a medical negligence case https://www.szepietowski.com/john-szepietowski-discusses-contempt-of-court-in-reference-to-a-medical-negligence-case/ Thu, 26 Jan 2023 12:46:20 +0000 https://www.szepietowski.com/?p=1746 ‘Contempt of court’ happens when someone risks unfairly influencing a court case. It may stop somebody from getting a fair trial and can affect a trial’s outcome. It is governed by the Contempt of Court Act 1981.

This blog will be looking at how contempt of court was heard in the medical negligence case of North Bristol NHS Trust v White [2022] EWHC 1313 (QB).  The background to this case is that Miss White and North Bristol NHS Trust (the “Trust”) reached a settlement agreement over Miss White’s Cauda Equina Syndrome claim.  This agreement saw the Trust agree to pay 50% of Miss White’s claim. The settlement covered causation but not the value of loss and damages.

Miss White valued her claim at £4.1 million plus a sum for general damages for pain and suffering. This lead to the Trust hiring surveillance agents to video Miss White. The video showed that Miss White was not immobile as she claimed to the experts (as explained below). As such, the Trust claimed Miss White was fundamentally dishonest and that the claim should be valued at £34,000 plus general damages for pain and suffering. Furthermore, the Trust applied for Miss White’s claim to be struck out. His Honour Judge Gore QC struck out the claim for failure to comply with Court directions and ordered Miss White to repay the interim payments she received, totalling £45,000.

The Trust then bought contempt proceedings.  This case was heard in the High Court before Mr Justice Ritchie in May 2022. Before the hearing, Miss White confirmed that she had made the following statements:

  1. She told her pain management expert that “she was unable to walk for 20 steps before having to stop; if she did not use a crutch she was only able to hobble”.
  2. She told her care expert that “she could not walk for 10 metres before stopping; she could climb slowly if she stopped every three steps; she could drive for 20 minutes; she used a crutch outdoors; she was unable to move from kneeling to standing; she required supervision in the shower and assistance with her shoes and socks.”
  3. She told her occupational therapist expert that “when she went out she used one crutch; she had extreme difficulty with kneeling, squatting or working at low levels; she found it extremely difficult to get down on to the floor to play with her son.”
  4. She told her neurosurgical expert that “outside she walked with an elbow crutch; she could walk for 10-20 steps before needing to stop and rest; she could not get in and out of the bath.”

Miss White stood by these statements even after being showed the video evidence. Mr Justice Ritchie found that Miss White had been dishonest and intentionally made false statements to  experts that were reporting her condition to the court. He further found that this had caused the Trust to be forced to obtaining expert reports, incur legal fees, carrying out surveillance and bring contempt proceedings. Additionally, this led to the court’s time and resources being use. In light of the above, Mr Justice Ritchie held that Miss White had acted in contempt. Before sentencing Miss White, Mr Justice Ritchie highlighted the following mitigating factors:

  1. Miss White had a 9 year old son;
  2. She lived with her mother who provided some care to her son;
  3. Miss White had already suffered as a result of her dishonesty. She lost the residual value of her clinical negligence claim which could have been as high as £150,000. She recovered £45,000 of interim payments but was ordered to repay this sum;
  4. Miss White suffered a horrible physical challenge as a result of her degenerate spinal condition which first became symptomatic when she was in her late teens;
  5. Miss White had clearly suffered a major depressive disorder (as evidenced by a psychiatric report) which had been recurrent and fluctuating. Her condition had a disruptive effect on her decision-making process;
  6. Miss White and her son have rights under the Human Rights Act to a family life, and Miss White has rights under the Equality Act 2010 as a result of her physical disabilities, and
  7. The time that had occurred between the end of Miss White’s clinical negligence claim, the start of the contempt proceedings and the permission hearing. The proceedings had been hanging over her for much longer than anyone would wish in an ideal world. However, the delays were contributed to my Miss White’s failure to make full and frank admissions of her contempt until the last minute.

A conviction for contempt of court can lead to a prison sentence for up to 2 years and/or a fine. Mr Justice Ritchie, bearing in mind the mitigating factors,  sentenced Miss White to 6 months in prison.

 

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 admin@audleychaucer.com or visit our Linkedin page at https://www.linkedin.com/company/audley-chaucer-solicitors/.

 

John Szepietowski

 

This information was correct as of November 2022

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John Szepietowski discusses how to make your marketing emails compliant https://www.szepietowski.com/john-szepietowski-discusses-how-to-make-your-marketing-emails-compliant/ Tue, 10 Jan 2023 09:32:38 +0000 https://www.szepietowski.com/?p=1743 The General Data Protection Regulation (GDPR) was introduced in 2018. It aims to ensure that organisations that handle personal data use the data securely and provide the individual with control of their data. Failure to comply with the regulations could lead to your organisation being hit with a substantial fine of €20 million or 4% of global revenue, whichever is higher.

The GDPR states that marketing email amount to processing data. Therefore, the GDPR applies to marketing emails. It is important to remember that the Privacy and Electronic Communications Regulations (PECR) apply alongside the GDPR.

There are two main conditions that an organisation can use to comply with the GDPR’s rules on processing personal data.

  1. Consent

Under the GDPR, consent must be obtained by an opt-in method. This means the customer must make a positive action to give you consent. This is normally done by making the customer tick a box which states they give consent to receive marketing emails.

  1. Legitimate interest

This is a vague term that could apply to a wide variety of situations. In theory, it allows the organisation to use personal data for any of its commercial interests or wider societal benefits. Whilst its flexibility could be of benefit to the organisation, it must be thoroughly justified. We will not look at this condition in any more depth as it will not work for marketing emails. To be compliant with the PECR marketing emails must have received prior consent from the individual.

Finally, to comply with the GDPR and the PECR, you will need to ensure your privacy policy clearly informs the individual how you use their data. Furthermore, your communications must give an uncomplicated process for the individual to opt-out of marketing emails.

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 admin@audleychaucer.com or visit our Linkedin page at https://www.linkedin.com/company/audley-chaucer-solicitors/.

 

John Szepietowski

 

This information was correct as of November 2022

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John Szepietowski considers BTI 2014 LLC (Appellant) v Sequana SA and others (Respondents) [2022] UKSC 25 On appeal from: [2019] EWCA Civ 112 https://www.szepietowski.com/john-szepietowski-considers-bti-2014-llc-appellant-v-sequana-sa-and-others-respondents-2022-uksc-25-on-appeal-from-2019-ewca-civ-112/ Thu, 22 Dec 2022 14:50:13 +0000 https://www.szepietowski.com/?p=1740 The Supreme Court considered directors’ duties under s.172 Companies Act 2006 and whether the trigger for the directors’ duty to consider creditors is merely a real risk of, as opposed to a probability of or close proximity to, insolvency. In doing so, the Court considered the existence and engagement of the so-called ‘creditor duty’.

Creditors always have an economic interest in the company’s assets, although this interest increases as the company approaches insolvency or enters it. This is because, upon insolvency, creditors will have the main economic interest in the company. The creditor duty has been defined as ‘the duty of company directors to consider, or to act in accordance with, the interests of the company’s creditors when the company becomes insolvent, or when it approaches, or is at real risk of, insolvency’. The question for the Court was whether the company was in fact insolvent, or at a real risk of becoming insolvent.

Background

In May 2009, the directors of a company called AWA distributed a dividend of €135 million to its only shareholder, Sequana SA. The significance of this was that it removed almost the whole of a debt which Sequana owed. However, at the time of this payment, AWA was solvent on both a balance sheet and cash flow basis (these are typical ways of determining whether a company is solvent or not). Despite this, their long-term liabilities of uncertain amounts meant there was a real risk that they might become insolvent in the future, though this risk was not ‘probable’. AWA did enter insolvent administration nearly 10 years later, in October 2018. BTI sought to recover the amount of the payment from AWA’s directors.

Supreme Court Decision

The Supreme Court held that there is a creditor duty supported by case law and s.172(3) Companies Act 2006. S.172(3) states that, when exercising their duties under s.172(1) (to promote the success of the company), directors must consider or act in the interests of the creditors of the company. However, because AWA were not insolvent at the time of the payment to Sequana SA in May 2009, and insolvency was not probable (less than a 50% prospect), the creditor duty was not engaged.

There remains to be a definitive point in which directors should exercise their duties with regard to the interests of creditors. Consequently, directors who are concerned that their company may be approaching insolvency should seek legal advice at the earliest opportunity in order to understand their position and responsibilities.

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 admin@audleychaucer.com or visit our Linkedin page.

https://www.linkedin.com/company/audley-chaucer-solicitors

This information was correct as at October 2022

John Szepietowski

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John Szepietowski discusses the Trust Registration Service https://www.szepietowski.com/john-szepietowski-discusses-the-trust-registration-service/ Tue, 20 Dec 2022 17:06:55 +0000 https://www.szepietowski.com/?p=1737 Recent changes to legislation surrounding the Trust Registration Service (TRS) means that all trusts in the UK must now by law be registered, even if they are not taxable. The aim of the scheme is to help trustees and personal representatives, particularly those of complex trusts to comply with their reporting and registration obligations

As of 6 October 2020 the requirements were set that

  1. All non-taxable trusts in existence as of 6 October 2020 must have registered with the TRS by 1 September 2022,
  2. Similarly, all non-taxable trusts created between 6 October 2020 and 4 June 2022 must have been registered by 1 September 2022
  3. Non taxable trusts created on or after 4 June 2022 must be registered within 90 days of creation
  4. Any changes to the details of a trust or its circumstances must be registered with the TRS within 90 days.

The registration requirements capture all non-UK express trusts which acquire land in the UK on or after 6 October 2020, or have at least one UK resident trustee and enter a new business relationship with a UK ‘relevant person’ (most often a UK professional service provider)

The new requirements also capture all UK express trusts, subject to exclusions such as:

  • Charitable trusts,
  • Registered pension schemes,
  • Trusts imposed by statute (intestacy/bankruptcy)
  • Trusts with life policies paying out on death
  • Certain ‘financial’ or ‘commercial’ trusts created in the court of professional services for holding client money

These registration requirements are incredibly wide, and with no back stop date for how old trusts can be, some historic trusts still in existence on 6 October 2020 will need to be registered. The registration requirements are so wide in fact that any trust which has been in existence since 6 October 2020 but which is closed prior to 1 September 2022 will still need to register but should then immediately be reported as closed.

The new requirement substantially increases the regulatory burden of trustees with penalties of up to £5,000 where trusts are deliberately not registered on time or kept up to date.

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 admin@audleychaucer.com or visit our Linkedin page.

John Szepietowski

This is correct as at October 2022

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John Szepietowski considers a recent ruling concerning Human Rights https://www.szepietowski.com/john-szepietowski-considers-a-recent-ruling-concerning-human-rights/ Fri, 16 Dec 2022 12:48:42 +0000 https://www.szepietowski.com/?p=1734 On 28 September 2022 the Court of Appeal effectively ruled that Human Rights are not a valid defence for protesters charged with the destruction of property.

 

The Attorney General, the Rt. Hon. Suella Baverman QC MP referred to the Court of Appeal on a question of law following the exoneration of the Colston four, a group of protesters who, during the height of the Black Lives Matter (BLM) movement toppled a statue of historic slave owner Edward Colston. The judgement made by the Court is referred to as Attorney General’s Reference on a Point of Law No 1 of 2022 (AGR1-22) and creates a binding precedent for future cases. The court made clear in paragraph 123 that the Colston four case did not turn on this point of law and that there will be no retrial of these particular defendants.

 

The court through AGR1-22 has made a number of distinctions based on what they consider to be “peaceful”, “violent” or “non peaceful” protest which is to say that Human Rights protection is not available in “violent” protest. The court concludes at para 87 that more than the most trivial of criminal damage will demonstrate the “violence” of a protest.

 

This means that where a protest is “violent” or “not peaceful” these issues need not even be considered. Where the protest is “peaceful” a proportionality assessment should be undertaken, as the court makes clear, in only very limited circumstances.

 

In truth, it seems clear that Human Rights arguments are rarely foundational to successful criminal defences in protest related matters. It is hardly an effective defence to criminal damage, assault against an emergency worker, or aggravated trespass to say that you were exercising some right to free speech or free assembly when you did so. Human Rights do not offer a carte blanche freedom from criminal persecution and never have. AGR1-22 makes little practical difference to defendants, but does symbolically showcase judicial temperament moving further and further from sympathy for protest related cases.

 

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 admin@audleychaucer.com or visit our Linkedin page.

 

John Szepietowski

This was correct as at October 2022

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John Szepietowski considers the new offence of Causing Serious Injury By Careless Driving https://www.szepietowski.com/john-szepietowski-considers-the-new-offence-of-causing-serious-injury-by-careless-driving/ Tue, 13 Dec 2022 17:17:50 +0000 https://www.szepietowski.com/?p=1731 New legislation has been introduced to punish careless drivers under the Road Traffic Act 1988 section 2(c). The offence is usually punishable by a fine. However, the new law has presented a harsher punishment for deterrence. This legislation will also apply to emergency services if they fall ‘below the expected standard of a competent driver.

Careless driving is driving in a way, which falls below what would be expected of a competent driver. The definition of a competent driver is a matter of interpretation for the courts. This legislation is so it does not depend on what the individual reasonably believes, but rather on what a reasonable person would consider careless.

Examples of careless driving  may include:

  • Overtaking on the inside or driving inappropriately close to another vehicle
  • Emerging through red lights or paths of other vehicles
  • Short distractions such as turning a car radio on
  • Driving when tired
  • Partaking in behaviour such as Wheelspins

Under the new legislation, to be liable for this offence the injury caused must be ‘serious’.

  • Any broken or displaced limbs, including a fractured skull, compound fractures etc.
  • Injury causing permanent disability, loss of sensory function or visible disfigurement
  • Injuries causing substantial loss of blood
  • Serious psychiatric harm

The new offence will be triable as an either way offence carrying a maximum of 2 years imprisonment and points on your driving license. Furthermore, it includes fines of up to £5,000.

For further information on this topic or any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372303444 or email admin@audleychaucer.com or visit our Linkedin page.

John Szepietowski

September 2022

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John Szepietowski Considers Stop and Search https://www.szepietowski.com/john-szepietowski-considers-stop-and-search/ Tue, 06 Dec 2022 09:03:21 +0000 https://www.szepietowski.com/?p=1728 Stop and search is an emotional topic. Some individuals condemn the process, whilst others feel violated and targeted by the system. There has been a 24% increase in the number of stops and searches, since March 2020.

In England and Wales, stop and searches are often carried out under Section 1 of the Police and Criminal Evidence Act 1984. This enables the police to stop and question an individual at any point in time if they have reasonable grounds to suspect you’re carrying: illegal drugs, a weapon, stolen property or something which could be used to commit a crime. Currently, an officer is entitled to ask for your name, the reason for being in the area and where you will be travelling to. However, by law, you do not have to stop or answer any of these questions, as this alone cannot be a reason to arrest you. There is a rising concern by ethnic minority groups that the stop and searches are not conducted fairly or consistently. Furthermore, figures suggest that ethnic minority groups are overrepresented in the statistics about stops and searches. In March 2020, the MET subjected 52.6% of ethnic minority groups to a stop and search. In contrast, only 7.5% of their white counterparts were, showing a vast statistical disparity.

Moreover, Section 60 of the Criminal Justice and Public Order Act 1994 enables an officer to conduct a ‘no suspicion’ stop and search under no reasonable grounds. A high-Rank officer can extend the searches for up to 24 hours. The officer searching must be in uniform. Failure to condemn the process under section 60 can result in up to a month’s imprisonment, a level 3 fine, or both. The fine would be a maximum of £1,000. During the search, an officer can ask an individual to remove an item of clothing if in suspicion. If the officer requires the removal of religious items, this must be done respectfully, out of public view.

Unfortunately, this matter continues to be a prevalent part of society. Subsequently, minority groups believe the government should introduce a system which reduces the statistical disparity and offer a more coherent approach to stop and search. This could have the potential to prevent the occurrence of unjust rulings, specifically against minority groups.

For further information on this topic or any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372303444 or email admin@audleychaucer.com or visit our Linkedin page.

 

John Szepietowski

September 2022

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John Szepietowski considers Leylandii Trees and Neighbour Disputes https://www.szepietowski.com/john-szepietowski-considers-leylandii-trees-and-neighbour-disputes/ Wed, 23 Nov 2022 17:21:33 +0000 https://www.szepietowski.com/?p=1725 The Leyland cypress is a fast-growing coniferous evergreen tree. It is used for hedges and screens. Many grow trees for privacy purposes. In recent years the number of disputes has risen due to the nuisance caused by Leylandii trees. Leylandii trees often affect neighbours and locals in the area.

A recent case involved pensioner Val Horton who was in a dispute with neighbour Valerie Vivian for 20 years over a 50ft leylandii hedge. Ms Horton argued the tree blocked her beautiful views from her property.  However, Ms Horton accepted defeat as the council ruled that the 50ft hedge did not breach any laws as it did not block out enough sunlight to be considered a nuisance.

Part 8 of the Anti-Social Behaviour Act 2003 enables local councils to take action against complaints about leylandii trees and hedges if the tree is affecting the neighbour’s enjoyment of their home or garden. Additionally, if the tree is becoming a concern the council can order the owner to take action and rectify the problem. Section 66 states, that the Leylandii tree must not be more than 2m tall and it must not be a barrier to light or access for another neighbour (the council will assess this on a case-case basis). In addition, it must affect a part of the building occupied or intended to be occupied. Most complaints are concerning the deprivation of sunlight, affecting the growth of plants and the roots of the hedge damaging an individual’s drive or home.

Initially, the council will advise both parties to settle disputes in-house. The sanction for failing to follow council instructions can result in a fine of up to £1,000. In addition, the order may be to cut the tree to the legal requirements.

For further information on this topic or any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372303444 or email admin@audleychaucer.com or visit our Linkedin page.

John Szepietowski

September 2022

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John Szepietowski considers the UK Supreme Court clarification of Directors’ duties to consider Creditors’ interests where risk of Insolvency is imminent. https://www.szepietowski.com/john-szepietowski-considers-the-uk-supreme-court-clarification-of-directors-duties-to-consider-creditors-interests-where-risk-of-insolvency-is-imminent/ Tue, 15 Nov 2022 09:57:19 +0000 https://www.szepietowski.com/?p=1722 Directors’ duties and walking a corporate tight rope

At a time when many companies are facing financial difficulties and directors are considering their legal duties, the Supreme Court has now handed down its long-awaited judgment in the decision of BTI 2014 LLC v Sequana SA and others [2022] UKSC 25. It clarifies the scope of directors’ duties in circumstances where a company is in financial difficulty, often referred to as the “twilight zone” i.e. the company is not yet insolvent, but the company’s financial position is precarious.

All members of the Court agreed that, where an insolvent Liquidation or Administration is “inevitable” the creditors’ interests become paramount, the shareholders ceasing to retain any valuable interest in the company.

What is the scope of the creditors’ interest duty?

This ‘creditors’ interest duty’, stems from the long-established fiduciary duty of a director to act in a way they consider, in good faith, would be most likely to promote the success of the company for the benefit of its shareholders as a whole (as codified by section 172(1) of the Companies Act 2006).

However, there is a common law rule (by section 172(3)) that this duty is modified in certain circumstances, namely the company’s possible onset of insolvency and the interests of its creditors.

The Supreme Court held that it is a balancing exercise between the interests of shareholders and creditors which works on the basis of a sliding scale.  In a nutshell, creditors’ interests will become increasingly important the closer the company gets to the point of insolvency, until insolvency is inevitable, at which point their interest becomes paramount.

The Supreme Court recognised that the decision making of directors in these circumstances would be heavily fact sensitive and must reflect the reality of what is happening on the ground. Each situation will be judged on its own unique facts.

What does this all mean for directors?

The decision still leaves directors personally vulnerable to personal liability in the wrong circumstances.

On a practical level, during times of financial difficulty, directors should:

  • ensure they are kept abreast of the company’s financial position
  • have their legal duties at the forefront of their minds
  • be conscious of making factual statements to creditors about the solvency position of the company
  • ensure that Board meetings at which the company’s financial position is discussed are accurately recorded in writing
  • seek professional advice early to support the board’s understanding of its duties and assist with the assessment of the financial position and trading decisions made in consequence.

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 admin@audleychaucer.com or visit our Linkedin page.

 

John Szepietowski

 

This information was correct as at July 2022

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