Regulated sector professionals and reporting suspicion of money laundering: is it a disproportionate burden?

Introduction

For quite a while, it has been well known that financial establishments have been used to conceal traces by criminals (He, 2006). Therefore, it is agreed universally that the most efficient way to tackle ML is by using financial establishments effectively (The European Parliament and the Council, 2001). Money laundering (ML) is used to describe not just cleaning of the capital fund but also disguising the illicit source of assets which was produced from criminal offences to provide profit to a particular group or person[1]. In 1990, 40 recommendations were published by Financial Action Task Force (FATF) which has been admitted as an international authority in relation to fighting ML to present an extensive regime for counter-terrorism financing (CTF) and international anti-money laundering (AML) (Strange, 1998). Over the years, FATF updated its regulations. One of the fundamental alterations was FATF changed its approach from a rule-based to a risk-based approach (RBA) in 2012. Routine implementations getting to trifle on the rule-based system and the increasing number of reports showing suspicious activity and transactions have caused the necessity of adopting an RBA to tackle terrorist financing and ML (Ansari, 2019). Regarding this, one of the highlighted points in FATF recommendations was that in terms of including the large spectrum of predicate crime, every serious offence should have been criminalised (FATF, 2012). However, the UK have taken some steps such as the Money Laundering, Terrorist Financing, and Transfer of Funds Regulations of 2017 and the Criminal Finances Act of 2017 (Ryder, 2018), Part 7 of the Proceeds of Crime Act 2002 (“POCA”). This decision has increased the number of suspicious activity reports (SARs) while decreasing the quality (Great Britain and Law Commission, 2019, p. 71). As a matter of fact that implementing RBA in UKs adapted system has led to various onerous practices for regulated entities in the sense of increasing economic and legal responsibilities such as new costly systems, inconvenient customer due diligence (CDD), absence of qualified staff and the breach of client secrecy (Great Britain and Law Commission, 2019, p. 9). Furthermore, it is essential to shed light on the definition and the scope of the new terms for enabling the compliance of required sectors. Even though there are some guides for sectors, “suspicion” is not defined clearly in the UK legislation; therefore, it has been seen that it has placed a heavy burden on professionals by avoiding sanctions and conducting their business. This essay has been divided into four parts. The first section of this paper will first analyse the efficiency of all crimes approach, their relationship with the RBA and the consequences on regulated sector professionals. The second section will discuss what is meant by suspicion, how employees follow the requirements and how it affects the quality and quantity of SARs. The following will then consider the economic and legal challenges the regulated sector faced while dealing with customers or clients. Finally, this study will investigate what the AML regime means for legal practice and how lawyers’ responsibilities affect it.

All crimes regime and risk-based approach

It is essential to classify risk assessment in AML regulation for banking. Classifying operations and clients with parameters such as low, medium and high are called a traditional assessment of risk (Naheem, 2020). Clients will be defined concerning their status and average transactions, and those who have high risk will assess further (Naheem, 2020). Nevertheless, the essential deficiencies of the risk-based approach are determined in reference to HSBC Bank USA N.A. (Homeland security, 2012). In spite of the fact that it is well known that cartels use the banks in the USA and Mexico for clean money which they earned by selling drugs, it was revealed that Mexico was categorised as a low-risk state. Because of the erroneous categorization of the state and its potential risk, FATF has adopted RBA, which fosters investigation locally (FATF, 2012). As one of the benefits of the RBA regime, the information sharing among local entities concerning the criminals can lead to more alerts for the regulated sector which might be the subject of possible reputational damage and the loss of the client (The Law Society, 2009).

Although most experts stated that RBA is conflicting with the all-crimes approach, the UK has adopted the all-crimes regime in POCA 2002 (Sinha, 2020). Fisher states that although there are concerns about the all-crimes approach in the regulated sector in terms of cost and compliance, they were overridden by the benefits of maintaining to operate in London (Qc and Clifford, 2017). In the case that the financial institutions do not relocate their centre in spite of the all-crime regime under AML/CTF procedures, it can be inferred that they rather prefer to stay in London and plan to implicitly enhance their reputation (The European Parliament and of the Council, 2001). Thus, these institutions may become more attractive places in terms of financial services (The European Parliament and of the Council, 2001). Furthermore, an all-crimes regime means that laundering or concealing any revenue regardless of the value acquired from any kind of crime infers an offence [2]. On the one hand, some argue that UK’s all-crime regime facilitates reporting requirements for the regulated sector (Great Britain and Law Commission, 2019). For instance, it is adequate that those subject to the reporting requirement provide any type of offence rather than defining it. Secondly, the burden of identifying the type of offence has been left on law enforcement agents (Great Britain and Law Commission, 2019). However, the view followed by the law society in the UK is that the main reason for the regime UK adopted lies behind the increased reports and complexity of the system (The Law Society, 2011, p. 19). Because of the description of criminal property in the Act, it is accepted that criminal property arises from all crimes and it passes among transactions. It is criticised by The Law Society that an all-crime regime impedes the way to manage relations legally with clients and it renders everybody suspicious. Also, the differentiation between real and technical laundering is perceived as time-wasting as well as a disproportionate burden by the professionals. Between 2014 and 2015, SARs submitted by the legal sector to the national crime agency (NCA) constitute less than 1% of total SARs (Solicitors Regulation Authority, 2016, p. 32). From the recent months of 2015 to the first months of 2017, around 600,000 reports were made and merely a small proportionate of them, 1,550, were refused when trying to get consent to continue the transaction (Great Britain and Law Commission, 2019, p. 31). It is perceived that most of the reports mean technical offences or minor breaches. Instead of avoiding transactions, seeking consent by solicitors probably means that the reports were made just because it is obliged rather than there is a suspicion. In practice, this difference may cause failure to notice the determination of reporting, which is obliged by the Act or make accurate reports. According to the broad scope of POCA, there is the possibility that the law firms that breach technical reporting requirements may raise ML crimes in law offices (Kebbell, 2017). Some rules go unnoticed by lawyers because the CDD process covered by the MLR 2017 constitutes a crime under POCA(Kebbell, 2017, p. 752). Moreover, it is argued that information pollution in SARs and the adoption of all-crimes regimes do not overlap with the AML system in a broader context (Sinha, 2020). Focusing on technical SARs may lose concentration on the substantial risk of ML. Sources used for technical SARs may be canalised into facilitating to find out actual ML actions. In 2016, the Action Plan of Government stated that most of the resources are focused on regulatory compliance rather than struggling with the risk of financial crime (The Law Society, 2011, p. 6.). It undermines the purpose of reaching actual RBA. The intention of serious offences differs from others in terms of violation nature of rights, so it is inaccurate to evaluate all of them in the same meaning (Kebbell, 2017, p. 747). It is believed that the requirements of technical SARs in POCA conflict with the intention of the Act. Professionals support it to take out minor breaches and technical offences from the context of POCA to avoid the heavy responsibility that the “all-crimes” regime has set up. In sum, although the more information law enforcement agencies are provided, the more it facilitates their operation, it is impossible to give a ground of balance between reporting burden of the regulated sector and either the seriousness level of the offence or the advantage to law enforcement agencies of this information.

Describing suspicion intensity of suspicious activity report system and losses it caused

To detect ML offences, having suspicion is essential and the necessary lowest cognitive condition[3]. The POCA draws attention to the reporting requirement of ‘reasonable suspicion’ without clarifying the exact meaning of it between articles 327 and 329. It remains to the courts to decide the meaning of ‘suspicion’ when the regulations do not clearly define it. In the Court of Appeal case of R v. Da Silva, the followed approach was granted in terms of suspicion meaning in ML[4]. It is decided that the scope of “suspicion” must be “more than a fanciful possibility” in the relevant event. However, it is not required by laws that “suspicion” be based on reasonable grounds or to be evident. In R v. Saik, while the Criminal Justice Act 1993 was in operation, the House of Lords interpreted suspicion degree which was defined as “reasonable grounds to suspect” in the statute[5], “knowing or having reasonable grounds to suspect that any property is the proceeds of criminal conduct”[6]. In other words, it can be said that to have a suspicion, it is required accumulated subjective suspicion based on objectivity[7]. In the R v. Sally Lane John Letts case, Lord Hughes has accepted the interpretation of suspicion that is incisively pointed out in the R v. Saik case. And he stated his doubt concerning the objectively assessed interpretation of reasonable grounds to suspect in a similar notification offence, which is regulated under the Terrorism Act[8]. The vagueness of the obligation burden on regulated entity professionals gives rise to ineffectiveness and intricacy (Bosworth-Davies, 2007). Because of the subjectivity feature of “suspicion”, banker lawyers and detectives may need different thresholds to reach it. It is cumbersome for regulated sector employees to understand what is required to report and how to implement measures (Melnik, 2000). However, there are some guidance reporters can refer to. HM Treasury has approved some of the guidance after the 2017 ML regulations and stated the intention of providing one directory per sector (Great Britain and Law Commission, 2019, p. 54). This can be seen as a successful attempt to ease the compliance compared to compelled employees to consult a bunch of guidance. For instance, the accounting and legal sector have their own guidance right now (HM Treasury, 2018, p. 2). Nevertheless, these positive developments are not sufficient, and directories do not have legal power even though they are approved by Treasury. One of the sector professional’s obligations, the requirement to be referred to more than one source generates challenges (Great Britain and Law Commission, 2019, p. 52). Moreover, guidance either in the same sector or different sectors differs from each other in terms of wording, notion and exceptions under POCA. Regulator authorities in the sector prepare some guidance such as the Legal Sector Affinity Group (LSAG) while some of them were composed of representative bodies such as the Joint Money Laundering Steering Group (JMLSG). These guides present different ways on notions of essential legal character. For instance, while LSAG’s guide defines suspicion as it is not required to be based on facts, JMLSG’s guide says it must go beyond speculation and should be based on some ground (Legal Sector Affinity Group, 2018). Even as definitions regarding suspicion are composed to ease the sector professional’s obligation, the confusion between them let the professionals remain to be in risk as a subject of the criminal activity related to ML (Great Britain and Law Commission, 2019, p. 55). With the lack of definition in the statute, the vagueness of reporting requirement scope and complexity of guidance in sectors cause an increasing number of reports. Between 2018 and 2019, The UK Financial Intelligence Unit received more than 450,000 SARs by 50% rise (National Crime Agency, 2019, p. 2). Even though comprehensibly, law enforcement is satisfied with the excessive reporting to get more information, receiving an intensive number of SARs does not mean that the information is practicable. NCA stated, in 2018, that there were 28 cases accepted as successful and 40 arrests while 464,000 SARs were made (National Crime Agency, 2018, p. 3). Furthermore, as financial institutions had risen the volume of SARs, the number of prosecutions had dropped (Naheem, 2020, p. 31). The Proceeds of Crime Lawyers Association (POCLA) expressed that compiling large intelligence was not the purpose of AML and risk assessment, and thus, now it is a challenge to filter effective ones (Great Britain and Law Commission, 2019, p. 31). The results have shown that the aim of AML regulations should be similar to the Netherlands precedent, which reflects a decrease in the number of suspicion reports whereas the relevant ML litigations rise in parallel, which reflects the quality (Soudijn, 2014, p. 239).

 Consisted of legal damages of the regulated sector and the HSBC case

Regulated sector professionals have some legal concerns about the AML/CTF regulations. The 21st recommendation in updated FATF 2019 ensures wide protection for financial entities and their workers (FATF, 2019a). It is stated that comprehensive protection regarding civil law and criminal law must be valid in case of any breach that may occur from sharing of intelligence restricted by agreement if reporting to the Financial Intelligence Unit (FIU) based on bona fide (Chaikin, 2009). It is not important whether regulated sector professionals know the details of the crime committed for the reporting process. The main aim of R. 21 is as long as action includes bona fide, it should provide lawful exclusivity by the time of filing suspicious transaction reports, even though suspicions are inaccurate (FATF, 2019a). This clause provides immunity to financial establishments both in the context of civil law and criminal law regarding the violation of the contract secrecy because of releasing client data to SOCA. Financial institutions should have promoted generating more SARs by this legal protection. However, contrary to this prediction, punitive provisions under POCA have caused the number of reportings to SOCA to rise (Burrell et al., 2012). In general, to be protected under the ML regime, it is enough for regulated sector professionals to report the suspicion and receive consent whereas, in the UK[9], they are still responsible for breaching mandate and trust liability when fail to follow customer instructions (Burrell et al., 2012, p. 543). The case of “Shah v. HSBC Private Bank Ltd” clearly shows how the banks sensitively play a role in the adaptation of the regulations (Himaambo, 2017). Mr Shah instructed HSBC to do a few operations in four months from September 2006, which amount to $38m (Egan, 2010). The bank has suspected that the transaction may have a relation with ML, and hence to continue, it waited to get consent from SOCA[10]. After the suspicion turned out false, Shah demanded compensation for his loss (Burrell et al., 2012, p. 543). The defence of HSBC is based on POCA based on the requirement of reporting suspicious activity and waiting until consent is given from the SOCA. Otherwise, the risk of committing an offence could have happened relevant to ML (Himaambo, 2017). At first, the summary judgment was made in favour of HSBC but then Mr Shah appealed the judgment (Egan, 2010). Some points have been discussed in the court of appeal: the level of suspicion required to prove the suspicion and sufficiency of summary judgments for similar ML cases (Burrell et al., 2012, p. 544). Lord Justice Longmore stated on behalf of the court that POCA torn banks between civil and criminal liability risks[11]. In Subsection 32 of the decision, it is expressed that summarily dismissing litigation without proper investigation is false in spite of FATF recommendations suggested that[12]. Ashurst attorneys argue that plaintiffs have no chance to be successful while regulated sector agencies stopped the operations to get approval from SOCA. And the main reason why this approach was confirmed and continued to be applied by the appeal court is the low level of suspicion (Himaambo, 2017, p. 184). Nevertheless, this provision showed that the defendant may be asked for presenting the suspicion of ML at trial but it is not necessary as long as the person who takes action has good faith[13]. But there is no genuine way to prove good faith concerning the suspicion. As a result, with the case of Shah v. HSBC, the decision exacerbated jeopardies of the position of which regulated sector in.

Consisted economic damages of the regulated sector

The pressure caused by the regulation and compliance in AML/CTF system is reflected in the financial and banking sector, in the context of the Bank Secrecy Act (BSA) thus the sectors face a burden in terms of the necessary precaution (Blozinski, 2017). Generally, financial establishments are able to understand the insight of requirements and risks of ML/TF regime and their own infrastructure for taking due precautions which include existing clients, surveillant operations and generating SARs (FATF, 2019b, p. 2). However, traditional agency theory is that banks never endanger customers’ business while seeking for-profit and it does not take into account the disposition of criminal customers’ actions (Wright et al., 2001). The absence of this theory is that it does not involve the liabilities the institution may need to carry out such as requirement measures for regulation compliance and measures which could affect the operation conduct of customers. Institutions in the regulated sector are stuck between the clients and regulations and have to find a balance between them (Dalla Pellegrina and Masciandaro, 2009, p. 946). Nevertheless, it does not seem possible to find a way between having responsibility for either CDD or AML/CTF regulation compliance because following one causes infringement of the other. It is expensive to comply with reporting requirements. It is expressed that the number of attendants spent in a finance authority (UK Finance Association) for complying with financial crime regulation representing the finance and banking sector (British Bankers Association, 2015) was more than 5bn per annum. On the other hand, there are some punishments for the regulated sector if they avoid generating SARs when it is necessary. For instance, between 2009 and 2016, more than $320bn have been paid by the regulated sector for breaching ML/TF regulations worldwide (Ansari, 2019, p. 249). It has been stressed that 16 institutions have been punished by reason of delay or failure to generate SARs (Debevoise and Plampton (2019). As discussed in the previous chapter, the courts cannot take a strict attitude in the case process because of lacking a statutory definition of suspicion. This vagueness affects regulated peoples’ endeavours negatively (Adebola, 2018, p. 207). However, FATF put RBA into action to diminish the burdensome cost and responsibilities; it appears that implementing theory into practice is not simple as it has been seen. To make this system effective, institutions and regulators must be collaborated such as specifying the scope of risk, required systems and labour force to find out illegal actions and provide entities to generate SAR. Until now, the RBA system has affected institutions adversely in terms of cost, reporting success and claims from clients depending on breach of contract (Stewart, 2005, p. 44). Between 2016 and 2017, to comply with RBA concerned process, the average expenditure of regulated sector entities with more than $10bn income has become 150m, increasing $8m, and the number of trained personnel has reached 307, by increasing 240 (Ansari, 2019, p. 66). According to Tanlu, Tetlock, Bazerman and Moore, the financial enterprises are provoked to provide riskless statements by clients who employ them and pay consultancy fees (Moore et al., 2006, p. 10). Auditors may remain between the social responsibility of public welfare and the impact of the mercantile system and may force to choose one of them. Generating SARs represents choosing the social responsibility step against CDD. Regardless of which way they will choose, staying between two responsibilities is a disproportionate burdensome for professionals. Some argue that the reason why ML takes place in banks is, the huge income they get from it rather than AML regulations. Slawotsky (2013) asserts that providing services to fraudsters and launderers to manage their assets and accounts can bring substantial profit. There are some respectable recordings chased by law enforcement agencies that AML regulations had been breached by banks conniving with launderers carrying and transferring money from illicit funds (Blum et al., 1998).

Liabilities of lawyer

Committing ML is a complicated and high-risk process and needs infrastructure more than ordinary crime. Criminals have to hide their international transactions, source of their money and actions which can evoke suspicion, so it is essential for them to hire financial workers and lawyers (Goredema, 2018). For example, it can be seen that as a politically exposed person, Obiang took advantage of hired lawyers to hide expediency in actions through financial entities (FATF, 2013). Lawyers present services such as creating trusts and foundations which are valuable for offshore investment for clients who want to conceal their source of money. It showed up in the Panama scandal that Appleby and Mossack Fonseca are two law offices that provide services involving wealth management and transactions in offshore jurisdictions, used for fraud, tax evasion and ML (Goredema, 2018, p. 6). Generally, it is not possible to have suspicion on regulated sector professionals because of their business ethics and designated station in life. Therefore, for example, being a practitioner of law provides an opportunity to diddle clients based on prestige and righteousness. To prevent cases like this, FATF brought obligations for regulated sector professionals. Recommendations 22nd and 23rd of FATF have presented what is required from lawyers in AML/CTF process (FATF, 2019b). 2001 EC Directive has been adopted and put in force in the UK as POCA in 2002. It is required lawyers to file SARs when faced with real estate actions, managing assets and almost every type of governing conduct and banking actions on behalf of clients, and preventing clients to know about reporting under Subsection 333 of POCA[14]. Also, 2007 AML regulations required lawyers to implement CDD and determine the ID of company owners. Because of the vagueness of the law, lawyers may not decide when to implement CDD procedures (Goredema, 2018, p. 10). It can be done before creating a relationship with a client, then it meant less amount of clients for law firms. Also, it can be done after receiving the first payment; it is more logical to pay the cost of CDD with that money, but this will also mean if there is a criminal client this reporting process may delay. However, some restrictions have flexed to preserve lawyer-client privacy regarding reporting obligations. Lawyers are not obliged to report STRs if there is a legal professional privilege which is mostly understood by countries as “performing their task of defending or representing that client in or concerning judicial, administrative, arbitration or mediation proceedings” (Hurd, 2018).

Nonetheless, being subject to AML obligations gives rise to another risk for regulated sector professionals whose business naturally gets in touch with acquired criminal money. It is provided by various international reports that committing ML offences either arises on purpose or negligence (He, 2006, p. 66). The wide scope of ML description includes acquiring and holding illicit income as well as hiding the illegal source of property. Because of extensive definition, workers in the regulated sector may be involved in the ML process unintentionally although their intention was not that. If a fault occurs during while requirement process of recognising a client or if reimbursement is acquired from illegal money, people under obligation may encounter an accusation related to ML. To avoid sanctions, lawyers are reluctant to know much about their clients and it may also affect the legal process of defending clients (He, 2006). Moreover, it is argued that although they are a substantial part of preventing ML, the implementation of AML regulations for regulated sector participants, such as accountants, notaries and lawyers is confusing, tiring, and burdensome (He, 2006). In principle, the measures obliged in AML/CTF regulations by FATF conflict with client privacy. It may not jeopardise the benefits of clients, to merely comply with the obligation of keeping this information by lawyers. However, filling SARs related to actions and giving information away will harm the connection and reliance between clients and professionals. Also, this will cause an unpredictable workload and a waste of time for lawyers. Juridical status acknowledged in the UK is that there is a legal agreement that includes a confidentiality clause between lawyers and their clients[15]. Lawyers cannot share information about their clients with third parties and also transactions they made on behalf of clients with third parties to anyone without consent. One of the essential exemptions of this rule is when there is a suspicion of a criminal offence through the client, taking preventive steps [16]. In the case of Michaud v. France[17], the court has emphasised that the lawyers have to file reports only in the situation of being involved in the ML process and helping clients for ML purposes because when public safety and client confidentiality are compared, the privacy can be neglectable[18]. In these circumstances, the court may hold that evidence collected by breaching privacy is acceptable[19]. The reason lies behind this decision is that confidentiality between lawyer and client is based on the trust relationship. Any communication comprising illegitimate or illicitly planned purpose abolishes confidentiality. No matter what obliging to share private information is violating the intra-communication rights of lawyers. However, in the UK, in the case of Bowman v. Fels, it is emphasised that the main idea of 330(6)(b) in POCA is that in spite of having suspicion or being able to prove it, lawyers should be protected in terms of doing legal business[20]. The 6th article of the European Convention on Human Rights points out that everyone must be able to retain a lawyer to defend his/her rights[21]. It is also highlighted in Bowman v. Fels that parliament cannot associate the lawyers’ actions assuring and defending the rights of the client in legal proceedings, with “becoming concerned in an arrangement which facilitates the acquisition, retention, use or control of criminal property”[22]. It means that lawyers should be free to conduct all of their litigation processes without concern. It can be seen that without some loopholes, steps taken in UK legislation tried to provide a comfortable zone for lawyers and it can be stateable as mostly protective. On the other hand, the same protective legislations cause more risky situations for lawyers because of a lack of clarity. In the case of London Borough of Brent v. Kane[23], because of legal advice given to reduce the cost of a residential care home, the claimant argued that there is a fraud by olds’ sons made through legal advice. Court held that it is required to disclose documents. As referred above, lack of clarity gives rise to courts making a decision against FATF recommendations, and hence lawyers are worried about how to cope with the situation.

Conclusion

In conclusion, the RBA followed FATF recommendations, and its adaptation in the UK with all crimes approach caused a discrepancy in the judicial system and influenced regulated sector professionals negatively. Besides that, the lack of statutory definition of suspicion and leaving it to the courts made the actus-reus vague for sector participants. It made the right way to conduct their business indistinct. Vagueness caused numerous reporting of suspicious activity, and thus it damaged the system as missing the real ML offences in a large pool. Also, it caused workload and time-wasting for regulated sector workers. AML/ CTF regulations and their adaption in the UK pushed the regulated sector in contradiction to public rule and ethical judgment both legally and economically, on the one hand, and forced them to comply with AML/CTF rules and avoid sanctions, on the other. UK legislations have caused difficulties for lawyers such as cost, mental and carry-on business. In spite of protective amendments in terms of jurisdictional immunity, UK legislations have caused problems for regulated sector professionals, such as the potential of breaching a client confidentiality agreement and avoiding tipping-off, thus remaining under pressure by clients and facing the risk of losing their clients or obligation to record suspicions in case of court investigation.

Av.Muhammet Emir Çelik

Notes

1. FATF, “IX special recommendation”; https//www.fatf-gafi.org/publications/fatfrecommendations/documents/ixspecialrecommendations.html; accessed August 30, 2019.

2. Theft Act 1968, s 12(5), s (6).

3. Proceeds of Crime Act 2002, s 340(3)(b).

4. R v Da Silva [2006] EWCA Crim 1654, [2006] 2 Cr App R 35.

5. Criminal Justice Act 1993, s 93C(2).

6. R v Saik [2006] UKHL 18, [2007] 1 AC 18 [51], [53].

7. JBA v The Attorney General & General Legal Council [2017] JMFC Full 02 [155].

8. R v Sally Lane [2018] UKSC 36, [2018] 1 WLR 3647 [22].

9. Proceeds of Crime Act 2002 s 338.

10. Shah v HSBC Private Bank (UK) Ltd [2009] EWHC 79 (QB).

11. Shah v HSBC Private Bank (UK) Ltd [2009] EWHC 79 (QB).

12. Shah v HSBC Private Bank (UK) Ltd [2009] EWHC 79 (QB) s 32.

13. Shah v HSBC Private Bank (UK) Ltd [2009] EWHC 79 (QB).

14. Proceeds of Crime Act 2002, s 333.

15. R v Derby Magistrates’ Court, ex-parte B [1996] 1 AC 487.

16. Proceeds of Crime Act 2002, s 330.

17. Michaud v France ECHR, Application No. 12323/11.

18. Kuwait Airways Corporation v Iraqi Airways Company, [2005] EWCA Civ 286.

K Ltd v National Westminster Bank plc [2006] EWCA Civ 1039.

19. R v Cox and Railton, (1884) 14 QBD 153.

20. Bowman v Fels [2005] EWCA Civ 226 [94].

21. European Convention on Human Rights 1950 (ECHR) 62 art [6].

22. Bowman v Fels [2005] EWCA Civ 226 [83/4].

23. London Borough of Brent v Kane [2014] EWHC 4564.

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