Tag Archive: High Court

BLACKS SOLICITORS: It Is Not Necessarily Where you Live

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In a surprising decision to some, the High Court has ruled that a Russian businessman living and working in Russia is domiciled in England and therefore subject to the jurisdiction of the English courts.

In the case of Bestolov v Povarenkin, Mr Bestolov brought proceedings against Mr Povarenkin in England seeking repayment of a debt which arose under a joint venture between them in relation to various mining projects in Russia.  Mr Povarenkin argued that the English courts did not have jurisdiction and that the dispute should be determined in Russia.  This was on the basis that both parties were Russian citizens who lived in Russia; their business interests were in Russia with neither having any business interests in England; the contract (the subject of the dispute) was concluded in Russia with performance to be affected in Russia; the witnesses were in Russia and all documents would be in Russian.  Further, Mr Povarenkin submitted that the parties had not agreed that the English court would have jurisdiction to determine the dispute or that English law would be applied to the contract.

That argument might seem persuasive but the court found that Mr Povarenkin was in fact domiciled in England for the following reasons:-

  • His wife and children had, since 2013, resided in London for the majority of the year.
  • His children were educated in England and spent the whole of the school year in England.
  • The London property was effectively the family home.
  • Mr Povarenkin was in England for substantial periods of time to be with his wife and children.
  • Mrs Povarenkin had spent a substantial amount of money to satisfy UK visa requirements resulting in her being granted temporary residence with the potential to apply for permanent residence.

Taking all of the above into account it decided that, because of his family connections, Mr Povarenkin was resident in England and as such the English court had jurisdiction to deal with the claim.

It is questionable whether the Russian courts will enforce any judgment that Mr Bestolov may obtain against Mr Povarenkin.  Despite that, even if there are difficulties in enforcing a judgment overseas, being able to sue in England is attractive to many because of the powers that the English courts have to freeze assets.  

This decision demonstrates that individuals cannot avoid being treated as domiciled in England, and therefore subject to its jurisdiction, by limiting the amount of assets which they own and the time that they spend here.  The courts will look at their connection to England when determining residency and jurisdiction.  If a party wishes to avoid this then it should ensure that an appropriate jurisdiction clause is included in the contract.  

If you are involved in any dispute or require contractual documentation to ensure that the appropriate jurisdiction deals with any dispute arising from a commercial arrangement then Blacks Solicitors can assist.  Please contact Luke Patel on 0113 227 9316 or email him at “LPatel@LawBlacks.com

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Brexit… not yet. High Court rule on postponement of EU exit

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IN OR OUT: The Brexit debate has risen once again in the UK

IN OR OUT: The Brexit debate has risen once again in the UK

British Prime Minister Theresa May says she remains determined to carry out the ‘will of the people’ next year and lead Britain out of the European Union, despite a High Court ruling casting doubt on Brexit.

Speaking to European Commission president Jean-Claude Juncker and Germany's Angela Merkel she reaffirmed her commitment to triggering Article 50 by March 2017.

A High Court ruled on Thursday 3rd November that the UK government does not have the legal power to begin formal exit negotiations with the EU without the approval of parliament.

Following the news, a government spokesperson said: “The government is disappointed by the Court’s judgment.

“The country voted to leave the European Union in a referendum approved by Act of Parliament. And the government is determined to respect the result of the referendum.

“We will appeal this judgment.”

DISCUSSIONS: May phoned both European Commission president Jean-Claude Juncker (pictured) and Germany’s Angela Merkel to confirm her stance to follow through with Brexit

DISCUSSIONS: May phoned both European Commission president Jean-Claude Juncker (pictured) and Germany’s Angela Merkel to confirm her stance to follow through with Brexit

One day later, May contacted both Juncker and Merkel via telephone to confirm the government’s appeal.

Her focus on ensuring government has the right to invoke Article 50 has incensed some lawmakers, with onea member of her ruling Conservative Party - MP Stephen Phillips - resigning over ‘irreconcilable policy differences’ with May.

A spokesperson for the Prime Minister said: “The focus of the government is on the Supreme Court case, winning that case and proceeding with article 50.

“Clearly we are disappointed by yesterday's decision, we'd rather not be in this position but we are, so ... the key is our commitment to triggering Article 50 no later. The end of March remains the target for the government.”

He added: “What is important here is that we had a referendum, there was an overwhelming result in favour of leaving the European Union and that is what the government must do.”

STANDING STRONG: Prime Minister Theresa May has confirmed that she will be appealing a High Court ruling which threatens her Brexit plans

STANDING STRONG: Prime Minister Theresa May has confirmed that she will be appealing a High Court ruling which threatens her Brexit plans

The court ruling has given hope to anti-Brexit supporters, with investors and pro-EU lawmakers urging parliament to put pressure on the Tory government and help ensure a ‘softer Brexit.

In the immediate aftermath of the High Court ruling, the sterling hit a one-week high against the euro, whilst it also rose by one per cent against the US dollar - the biggest increase since August.

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Indian police admit lapses in investigation

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INDIA-POLITICS-MODI

The Mumbai police has issued a memo to all police stations in the city highlighting the lapses in the investigations in the 2002 hit and run case involving Bollywood superstar Salman Khan, in which he was acquitted by the Bombay High Court.

This is apparently done to prevent the embarrassment of losing a case, especially where high profile personalities are involved.

A senior official attached with Mumbai police said: “This is to prevent the embarrassment which police face following the Salman Khan case," he said. The memo mentions 16 lapses among the several procedural lapses of the police in the case, which the high court had mentioned in its judgement.

The Bombay High Court had acquitted the 50-year-old actor of all charges in the hit and run case. The Maharashtra government has decided to file an appeal against the high court verdict in the Supreme Court.

Senior officials from the city police have asked other officers to present a water-tight case in future taking lessons from the Salman Khan case.

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Bulls liquidators appointed by High Court

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SUCCESS: Legal action by former Bradford Bulls owner, Omar Khan, ensured independent liquidators were appointed to OK Bulls Limited

SUCCESS: Legal action by former Bradford Bulls owner, Omar Khan, ensured independent liquidators were appointed to OK Bulls Limited

On 24th July 2015, OK Bulls Limited, which until its 2014 administration traded as Bradford Bulls in the Rugby League Premier Division, was wound up in the High Court bringing the administration to a close. 

At the same hearing, Gerald Krasner and Nick Reed of Begbies Traynor (Central) LLP have been appointed joint liquidators of the company.

The appointment of the joint liquidators is the result of successful legal action by the major creditor, Omar Khan, to appoint independent liquidators.

In March this year Mr Khan won a well-publicised legal battle against the former administrator David Wilson, to recognise the scale of his £978,920 investment into the Bradford Bulls.

The joint liquidators have been requested by Mr Khan, who was also a former director of the company, to investigate a number of matters leading up to and during the administration.

In August 2012, Bradford Bulls were within 30 minutes of ceasing to exist when Mr Khan purchased the club via OK Bulls Ltd.

 

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Death sentence for five men for 2006 Mumbai train blasts

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DEVASTATION: The bombs in 2006 targeted an overcrowded suburban network that carries around seven million people a day

DEVASTATION: The bombs in 2006 targeted an overcrowded suburban network that carries around seven million people a day

The Bombay High Court has sentenced five men to death and jailed seven for life for planning the bomb blasts that ripped through Mumbai commuter trains in 2006, killing more than 180 people and wounding hundreds.

The specially convened court convicted 12 of 13 accused earlier this month for their role in the events that led to seven bombs exploding on packed trains during the evening rush hour in Mumbai on 11th July, 2006.

The bombs targeted an overcrowded suburban network that carries around seven million people a day.

Police say the attack was carried out by disaffected Muslims at the behest of Pakistan-based Islamist militants, and named militant group Lashkar-e-Taiba's Pakistan-based leader, Azeem Cheema, as the prime conspirator.

Defence lawyers said they would appeal to the Bombay High Court. "We are disappointed with the decision," lawyer Wahab Khan told reporters. "Even a common man could say this is a framed-up case."

Controversy has dogged the investigation of the 2006 attacks, adding to delays in a trial which has dragged on for eight years and featured testimony from about 200 witnesses.

Some defendants said they were tortured by police eager to extract confessions on charges that ranged from murder to conspiracy against the state and waging war against the nation. Police have denied these assertions.

Relations between India and Pakistan remain difficult, with recent flashpoints including border tensions and controversy over whether to discuss the disputed territory of Kashmir derailing an attempt to revive peace talks.

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Landmark case could rewrite history of rugby club

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RELIEVED: Khan was forced to walk away from Bradford Bulls after his regime’s company was liquidated

RELIEVED: Khan was forced to walk away from Bradford Bulls after his regime’s company was liquidated

Former Bulls owner claims victory against administrator

After being branded a ‘thief’ by some, Omar Khan says it was a ‘huge relief’ when a High Court ruled in his favour last week as he continues the fight to clear his name following his ownership of Bradford Bulls.

The Rugby League outfit were within 30 minutes of ceasing to exist when Mr Khan purchased the club via OK Bulls Ltd in August 2012.

Unfortunately in 2014, the company entered administration owing £1million. Mr Khan said that the company was solvent when he handed it over and it was difficult to see how the administrator had come to this decision as he had not counted Mr Khan’s investment fully.

The local restaurateur has always claimed that most of the money owed was in fact his investment and that the club should not have been affected.

INNOCENT: Omar Khan says he now hopes to have an independent liquidator launch an official investigation into the administration

INNOCENT: Omar Khan says he now hopes to have an independent liquidator launch an official investigation into the administration

The original report by Leeds-based administrator David Wilson stated Mr Khan had invested just £375,000 whilst in actual fact the figure, as the High Court confirmed, was much closer to the million mark.

During the administration process, any creditor is able to call for a creditor’s meeting - with the amount invested by each creditor equating to that person’s voting power. Mr Khan arranged this meeting at his own expense.

As the majority shareholder his votes would have determined the outcome of the meeting.

However, the Rugby Football League were also given a vote after claiming, the day before, that they were owed £900,000, something the High Court ruled was wrong, adding that the RFL should not have had any say at all.

Mr Khan says that a well known creditor, who will be named shortly, voted on the side of the administrator, so that the administration ended and an investigation, which is what Mr Khan wanted to propose by appointing an independent liquidator, could not take place

Mr Khan is now attempting to rearrange a creditors meeting where he is optimistic of his proposals being passed, without the influence of the RFL’s vote, and the possibility of a full investigation being launched into the administration by having a liquidator appointed.

Speaking about his victory at court, he said: “It was a relief to hear the correct verdict. This club should never have gone down. It wasn’t in debt, and the million pounds was mine not the clubs.

“I have been called a thief and accused of so much over the past year but this ruling is just the start of the truth coming out. I have even been made to look like a liar by the administration when all the evidence was there to prove otherwise.

“We are currently seeking to reschedule that key creditors meeting and are in talks with the administration’s solicitors.

“I am hopeful of putting my proposals forward and having the chance to see a full investigation into the administration launched.”

If a meeting can be arranged, the administration will write to all the creditors, including Mr Khan, to ask them to return and put forward their proposals.

Mr Khan will have much more power in the meeting without the RFL, and he says his main objective is to have an independent liquidator appointed to investigate ‘everything’ that happened.

“I want to completely clear my name and show that the old regime did nothing wrong,” Mr Khan added.

 

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Billion pound lawsuit

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tchenguiz

A property tycoon has launched a huge lawsuit in the High Court as he seeks to gain £2.2billion pound in compensation for irreparable damages to his reputation and business.

Vincent Tchenguiz

UK-based property mogul Vincent Tchenguiz said on Thursday he had filed a 2.2 billion pounds ($3.5 billion) lawsuit against accountancy firm Grant Thornton, Icelandic bank Kaupthing and three individuals in the High Court.

The lawsuit alleges they conspired to instigate a Serious Fraud Office (SFO) investigation into him and his business activities, which was subsequently dropped in 2012 after a series of blunders.

Tchenguiz's brother Robert, who was also investigated by the SFO and briefly arrested in 2011 alongside Vincent, told Reuters by email that he would join the lawsuit.

Iranian-born Vincent and Robert, who are well known in London's high society, have said that the botched SFO investigation linked to the 2008 collapse of Kaupthing caused lasting damage to their reputations and businesses.

Earlier this year, they settled a 300 million pound damages claim against the SFO, which averted a civil trial and a further public airing of the agency's handling of the case, with a 4.5 million pound out-of-court deal.

The individuals named in Tchenguiz's latest claim are Stephen John Akers, Hossein Hamedani and Johannes Runar Johannsson. Akers and Hamedani are both partners at Grant Thornton, while Johannsson is an Icelandic lawyer. The failed Icelandic bank had financed Vincent Tchenguiz to the tune of 1.7 billion pounds.

"Grant Thornton UK LLP, Steve Akers and Hossein Hamedani deny all of the claims made," said a Grant Thornton UK LLP spokesman. "We have all acted appropriately and in accordance with our professional responsibilities and legal obligations throughout. After years of speculation in the media, we will now have the opportunity to defend ourselves through the court process."

Kaupthing said neither the bank nor Johannsson had received any communication about the claim. In an email, the bank added that the allegations had "absolutely no basis in fact or in law" and would be very vigorously contested.

After the SFO dropped its investigation, the Tchenguiz brothers blamed "external influences" for the events that led to their arrest and said they would pursue those they said were responsible and liable for the damage caused.

Soon after they were detained in 2011, Bank of America Merrill Lynch recalled a 124.6 million pound loan to Vincent Tchenguiz's Peverel Group, pushing the property management business into administration.

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One Vision

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In a previous article, we looked at the case of Specsavers –v- Asda which concerned a marketing campaign by Asda to promote its in-store optician services. Asda used various marketing materials in their stores and on their website which included the taglines “Be a real spec saver at Asda” and “Spec saving at Asda”. Asda had also used a logo mark of two non-intersecting ovals similar to the overlapping ellipses used by Specsavers (“the wordless mark”).

Specsavers issued proceedings in the High Court for trade mark infringement and passing off. The Court of Appeal found that the use of both straplines amounted to an infringement and was unfair.

The Court of Appeal sought guidance from the Court of Justice of the European Union which found that the use of a composite mark (a word mark superimposed over a logo mark) is capable of amounting to genuine use of a trade mark, provided that the use of the composite mark does not alter the distinctive character of the logo as registered. The case was then returned to the Court of Appeal for an application of the guidance provided by the European Court to the specific facts in question.

Whilst the infringement proceedings were concluded on terms confidential to the parties, the Court allowed Specsavers’ appeal relating to its trade mark. Accordingly, the wordless mark was not to be revoked for non-use.

The Judge indicated initially that Specsavers’ argument did not appear very convincing on the basis that the addition of the word ‘Specsavers’ was a highly distinctive and prominent delineating element when compared to the wordless mark. However, the Judge was persuaded by the following factors:-

• Specsavers had made very extensive use of the logo for a long period of time. In 2009 alone they had spent £45million on advertising

• None of their competitors have a logo even vaguely similar

• There was evidence that ASDA had deliberately adopted a logo similar to that of Specsavers. Therefore, it was reasonable to assume that ASDA were well aware that consumers would identify the overlapping ovals as denoting Specsavers, even without the addition of the word.

The wordless mark had itself been seen as a trade mark and not just as background. This all amounted to unusually convincing evidence of genuine use.

The Court dismissed the concern expressed by the Trade Marks Registrar (who had been permitted to intervene in the appeal) that allowing the appeal would result in many applications to register relatively commonplace outline shapes of logo marks. The Court were of the view that each case would be decided on its own facts but did note that this was an unusual case and it was generally unlikely that the background of a mark would be perceived as an indication of origin.

We at Blacks have a specialist Intellectual Property team dealing with all aspects of trademarks and any disputes arising.

 

Please contact Luke Patel on 01132279316

or by email at LPatel@LawBlacks.com

 

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