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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Adams v Law Society of England & Wales [2006] EWCA Civ 1857 (19 December 2006) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2006/1857.html Cite as: [2006] EWCA Civ 1857 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
1) CHANCERY DIVISION
2) QUEEN'S BENCH DIVISION
((1) HIS HONOUR JUDGE WEEKS QC
((2) MR J SULLIVAN)
Strand London, WC2 |
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B e f o r e :
____________________
ADAMS | CLAIMANT/APPELLANT | |
- v - | ||
THE LAW SOCIETY OF ENGLAND AND WALES | DEFENDANT/RESPONDENT | |
THE QUEEN ON THE APPLICATION OF ADAMS | CLAIMANT/APPELLANT | |
- v - | ||
THE BAR COUNCIL JOINT TRIBUNAL & OTHERS | DEFENDANT/RESPONDENT |
____________________
(DAR Transcript of
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THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
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1) The appellant was to file and serve any further evidence by 4.00pm on 8 September 2004.
2) The Law Society be at liberty to file and serve evidence in reply thereafter.
3) There be liberty to either party to apply to fix a date by which such evidence be filed.
4) The application was to come on as an application by order and certified as urgent business on a date to be fixed after 13 September 2004, time estimate be agreed between the parties.
1) The appellant contended that in the light of evidence there was no reason to suspect dishonesty on his part.
2) The fact that the appellant was not given an opportunity to respond to the Law Society report before the resolution was in breach of his article 6 ECHR rights as incorporated by the Human Rights Act 1998.
3) The relevant statutory provision should be made in such a way as to make them compatible with the ECHR and therefore to import an obligation to give the appellant notice of the report and to give an opportunity to respond to the report. The appellant's response should then be taken into account.
4) In the alternative, if the statute cannot be read in the manner contended for, a declaration of incompatibility ought to be made.
5) The appellant sought damages under the 1998 Act and/or a common law for breach of statutory duty.
"Claimant's Brief Skeleton Argument for Application for Permission to Appeal enclosed with bundle lodged on 30th May 2006."
There are other documents within the bundle, but the substance of the argument being put forward by Mr Adams will be found in the document to which I have just referred.
That was signed by a doctor on 18 September 2006. The letter of 26 September also referred to further material which the appellant would wish to place before the court.
"I am also suffering from other long standing and more recent physical problems, from one of which I am again being referred to a separate consultant."
"The lack of preparedness is not the reason for the application – I appreciate the fact that one or other party is not ready is not usually – in the absence of some special reason – a sufficient reason to grant an adjournment. It is in fact my ill health and the intolerable pressures on me for some time past which have recently reached crisis point, which are responsible for my being unable to cope, to finalise the essential preparations for my appeal and now not being in a fit state to deal with this or any of the other matters above. I should mention that I have been forced to take huge amounts of time away from my non-solicitor temporary work over the past year. For example in February 2006 I was away for three of the four weeks I should have been present to work in order to prepare my opposition to the Society's strike out application being heard on 2nd and 3rd March 2006. The continual disruption and absence resulted in a row with the company I am contracted to provide services as a consultant, with the result my services were summarily dispensed with in June 2006. They subsequently took pity on me and reinstated me – realising I was the victim of huge external pressures – but my present illness places all this in jeopardy once again."
"Thank you very much for referring Nigel Adams, whom I saw in my outpatient clinic at the Capio Nightingale Hospital. Nigel is suffering from a moderately severe depressive illness, precipitated by extremely difficult financial, legal and professional circumstances. Nigel tells me that he is simply not coping at the moment, has long periods in the day where he feels extremely low and his wife and family are increasingly concerned about him. As you noted in your helpful referral letter, he has all the classic symptoms of depression including poor appetite, insomnia, early morning wakening, poor concentration and continued obsessional ruminations about his circumstances.
"He had some psychiatric difficulties when he was 16 and attended psychotherapy at the Tavistock clinic. He was also seen at the Maudsley Hospital when he was around 20 years old. Approximately 2 years ago, he began to have difficulties sleeping and was prescribed a short course of sleeping tablets. I understand that he has never used antidepressant medication before. I understand from his notes that he has no family psychiatric history. His two children aged 21 and 16 are fit and healthy. He relies heavily on his wife who he tells me is an extremely capable person and the head teacher at a school for special needs children.
"I am pleased to note that Nigel has not resorted to alcohol and has never used illicit drugs.
"He prides himself on his physical abilities and used to be a competitive runner until the onset of some knee problems. I understand that he has a number if other physical ailments for which he is currently receiving care from your good self.
"On mental state examination, Nigel presented as an immaculately dressed man who looked younger than his age. Eye contact was poor and he tended to talk past me rather than to me. He spoke continuously and at times I had to interrupt him in order to bring him back to the point. His thoughts are preoccupied with the details of his current problems which he was eager to express in minute detail. He gets lost in his thinking and he is over inclusive in his thoughts. He is unable to process out what is relevant and what is not relevant in answers to questions.
"I note that on the Beck's Depression Inventory, a 21 item questionnaire, Mr Adams had all the symptoms of depression including some fleeting suicidal thoughts. On the Beck's Anxiety Inventory, his scores were lower but well within the range of diagnosis.
"Opinion and recommendation
"Mr Adams requires treatment for a depressive illness. My concern is if he does not have appropriate treatment at this stage, his illness may well worsen given his extremely difficult current circumstances. Mr Adams requires a referral to the local catchment area Consultant Psychiatrist, antidepressant medication and a referral on for Cognitive Behavioural Therapy. I do not think that he is in any fit state at the moment to be able to conduct his business affairs or to be in a position to attend a tribunal or court. I would suggest that once he has been vigorously treated for his depressive illness and has completed his course of CBT, he could then resume attending to his current business and legal affairs. He will require further assessment in about 8 weeks by which time I hope he will have completed at least 3 or 4 sessions of therapy and have started on antidepressant medication.
"I have explained to Mr Adams that since finances are difficult at the moment that he should attend your surgery for a referral to his local Consultant Psychiatrist and CBT Therapist. I have explained to Mr Adams that I will copy this letter to him so that he himself is aware of developments. Thank you very much for referring Mr Adams to me. I think he carries a good prognosis if he is effectively treated because he has an intact personality, a supportive relationship and no significant previous history of mental illness in the last 10 years. He is clear that his current mental illness has been precipitated by some very difficult personal circumstances. I thank you once again for the referral."
"… was in the expectation that by now I might have completed a course of treatment".
"I write to you with a progress report on Mr Adams and to say that I have seen him today in my clinic here at the Capio Nightingale Hospital.
"Nigel has not made much progress since our last communication, simply because he has not had any treatment. I understand that he is seeing a member of the Community Mental Health Team on 20 December 2006 for an assessment. In my experience the way that the assessment will work is that he is likely to see a nurse at the CMHT belonging to a Brief Assessment Team, thereafter he will be discussed in the weekly team meeting when new referrals are discussed.
"Following that discussion, a decision will be made whether or not he is suitable for CBT. I cannot imagine that he will not be suitable for CBT and will then expect he will be placed on the waiting list for CBT. I understand that the NHS waiting list could be something approaching 6-9 months. This will mean that Mr Adams will not have had to recommended treatment prior to recommencing his legal issues with the courts. It remains my view that Nigel is unable to cope with these and other such matters until he has completed the course of treatment I recommended.
"I understand that Mr Adams is unable to fund any treatment privately because he is not privately insured.
"In terms of his mental state he remains rather impatient to get treatment so that he may at some point resume his duties.
"I have advised him that if he is able to do some work, he should, because a limited amount of work, perhaps a day a week, can only be helpful in maintaining his morale during what is a most difficult period for him.
"Thank you for all your help regarding Mr Adams. I will see him again in the New Year and will write further to you."
That application for an adjournment was placed before Smith LJ, who directed as follows:
"In view of the fact that treatment is unlikely to begin for at least six months and will then take some time to complete, it does not seem practicable to defer consideration of this application until the quite uncertain time at which the applicant will be declared fit. The application for an adjournment is refused. If the applicant does not attend, the application will be dealt with after consideration of the papers."
"I would gladly attend tomorrow and argue my case for an adjournment, if I could, but I have two problems. I have an urgent dental appointment for a suspected fractured tooth which is causing me significant pain. If I cancel I may not get seen this side of Christmas. Secondly, I simply am not in a fit mental state to attend any hearing. In my present state I cannot cope with even moderate stress and whilst otherwise in certain circumstances can sometimes be a passably competent advocate, I at present get quite excitable and upset at oral hearings (and with other things besides). Of course, I am in a far less of a position and state to argue the application for permission: that is simply out of the question."
"They are nowhere near the state I intended them to be for before the permission hearing."
And he refers to illnesses which he has been suffering for some time now. He says:
"I was labouring under considerable difficulties even before my illness later this year and have probably been in a bad way since before the intervention."
He complains of a lack of sleep during and following the investigation. He complains that the intervention destroyed him professionally, emotionally, mentally and came close to wrecking his marriage.
"'It's absolutely unbelievable!'"
"I do not understand why in principle it should be in order for a party to say his treatment…will be complete in three years, at which time he will be able to face his various…hearings, but not if there is uncertainty, even if in fact [it can] be completed in twelve months?"
In paragraph 24 he says:
"I also respectfully suggest that the indeterminate length of an adjournment on health grounds - looking at the matter prospectively – is logically and justly irrelevant. If it takes six to nine months so be it. It takes – and more important should take - what it takes."
"It would be likely by then definite dates for the starting and completion of treatment would be known and the Court could make a more informed decision."
I take that from paragraph 26 of the letter.
"I hope that suggestion commends itself to you, although I say again that if it say takes me twelve months to be in a fit state to deal with all these legal matters, then surely that is the just cause to take?"
"Thank you very much for referring Nigel Adams, whom I saw in my outpatient clinic at the Capio Nightingale Hospital. Nigel is suffering from a moderately severe depressive illness, precipitated by extremely difficult financial, legal and professional circumstances. Nigel tells me that his[sic] is simply not coping at the moment, has long periods in the day where he feels extremely low and his wife and family are increasingly concerned about him. As you noted in your helpful referral letter, he has all the classic symptoms of depression including poor appetite, insomnia, early morning wakening, poor concentration and continued obsessional ruminations about his circumstances.
"He had some psychiatric difficulties when he was 16 and attended psychotherapy at the Tavistock clinic. He was also seen at the Maudsley Hospital when he was around 20 years old. Approximately 2 years ago, he began to have difficulties sleeping and was prescribed a short course of sleeping tablets. I understand that he has never used antidepressant medication before. I understand from his notes that he has no family psychiatric history. His two children aged 21 and 16 are fit and healthy. He relies heavily on his wife who he tells me is an extremely capable person and the head teacher at a school for special needs children.
"I am pleased to note that Nigel has not resorted to alcohol and has never used illicit drugs."
"Thoughts of Nigel Adams on Verdi and the doctrine that if there's no goodwill/clients left there's no point in withdrawing the Notice of Intervention."
He says that those notes were commenced on Saturday 24 September 2005 and updated as at 5 September 2006.
"The Law Society is obviously keen to finalise the proceedings as quickly as possible, but recognises that the court may well wish to have regard to Mr Adams' existing medical condition when determining whether or not an Application for adjournment should be granted.
"If therefore in the circumstances the court decides to adjourn the matter, we are instructed that the Law Society will not raise an objection thereto."
"It is intended to be a summary process, not one that is measured in months but one that is measured in weeks."
The judge went on to say:
"Here, we are nearly eighteen months after the application was first brought to the court and we are nowhere near a hearing at this stage. Of the 70 files, by reason of the lapse of time, only 2 have anything in them and there is no purpose in restoring those to Mr Adams because he could not, in any event, work on them because he has no practice at the moment because he has not supervised in accordance with his practising certificate."
In paragraph 29 he goes on to say:
"I can see no prospect of the court granting the relief sought by Mr Adams."
"because of the time that has elapsed and the changed circumstances".
The judge reached the conclusion that the failure on the part of Mr Adams to comply with the various court orders was "quite inexcusable". He then decided at paragraph 30 that there was no real prospect of success given the lapse of time.
"I have to say that the lesson to be learned was not learned in this case. Delay of over three months at getting the evidence ready and then nine months for applying to have it served late makes these proceedings pointless.
HHJ Weeks said that in the case which he was considering the action is now "pointless".
"In any event, Mr Adams is not in a position at the moment to seek further work. For the last five months he has not been practising as a solicitor and that is not a compelling reason why the case should be disposed of at trial."
"As I have said several times in the course of this judgment, part 6 is a summary remedy for a solicitor to put an end to an intervention. It is not a suitable place for ventilating grievances about the conduct of the Law Society. All the more so because, in the proceedings he has started on by Part 8, there are usually no statements of case or defence. Quite often there is no cross-examination and the salient points have to be taken out of the witness statements. Such a procedure is wholly unsuitable for disputed issues of fact particularly where issues of the honesty and propriety of those who were charged with the serious matter of reporting on the conduct of solicitors is concerned. That is not any reason for having a trial."
"This is a renewed application for permission to apply for judicial review of a decision of 19 November 2004 with reasons provided on 22 November 2004 Mr Christopher Palmer and Mr Andrew Lidyer acting as a 'joint tribunal' in relation to a dispute between the claimant and a barrister in relation to the barrister's unpaid fees of £8,000 plus VAT. Prior to the hearing, the claimant, who has appeared before me in person, filed a lengthy witness statement, running to 61 paragraphs over 21 pages, explaining why he considered that an adjournment should be granted. In addition, the witness statement raised a number of other matters.
"The claimant also produced, for the hearing this morning, a 4-page skeleton argument. Again, that dealt, in large measure, with various applications which the claimant wished to make, including an application for an adjournment and, indeed, an application for transfer of the claim to the Chancery Division.
"I declined to allow the application for an adjournment, because a particular issue had been raised in the defendant's statement of grounds which were received by the Administrative Court as long ago as the 21st March of this year. That issue, if correct, will be a complete answer to these proceedings. The statement of grounds produced, as part of a bundle of documents, a copy of the terms of work on which barristers offer their services to solicitors, and also exhibited copies of the joint tribunal standing orders for fee disputes with solicitors, and a copy of the agreement by which the dispute came to be referred to the joint tribunal.
"The point made, in brief summary, in the defendant's summary grounds was the decision of the joint tribunal was simply not a decision which, by its nature, was susceptible to judicial review. It is significant that, notwithstanding the length of the witness statement and the length of the claimant's skeleton argument, that that matter was not addressed by him. I was, however, satisfied that he had had ample time in which to consider that matter and that he had had ample opportunity to prepare such arguments, as he wished, in order to answer it.
"The short question is whether the decision of the joint tribunal was a decision of a public body acting as such."
"entirely satisfied that the joint tribunal is not a public body and that, even if it was it was, it is a body that is simply resolving a purely private law dispute between the claimant and the barrister concerned".
"It seems to me that, if and insofar as there is any complaint there, it is a complaint against the Law Society's rules, which are not challenged in these judicial review proceedings."
Order: Applications refused.