|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Shaw & Anor v Logue  EWHC 5 (Admin) (13 January 2014)
Cite as:  EWHC 5 (Admin)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| ANDREW WILLIAM SHAW
CRAIG STEPHEN TURNBULL
|- and -
|GEOFFREY COLLINS LOGUE
John Wardell QC and Andrew Mold (instructed by RadcliffesLeBrasseur) for the Respondent
Hearing dates: 10th, 11th, 12th and 13th December 2013; 13th January 2014
Crown Copyright ©
MR JUSTICE JAY:
Essential Factual Background
The Proceedings before the SDT
(i) by providing misleading information and/or suppressing information at the without notice hearing as to the Respondent's place of residence in New York;
(ii) by failing to give full and frank disclosure at the without notice hearing in relation to the involvement of Candy/CPC the allegation was that the latter had a commercial interest in the outcome, and was funding the proceedings in the UK, and that both of these matters should have been disclosed;
(iii) by providing misleading information at the without notice hearing as to the nature of the case being advanced by the Liquidating Trust against Mr Logue in the US, in particular (and I am simplifying the matter considerably at this stage) that no case of actual fraud was being advanced;
(iv) by disclosing confidential information to Jones Day and/or Candy/CPC contained in Mr Logue's affidavit of means;
(v) by providing misleading information, or by failing to give full and frank disclosure, in relation to the involvement of Candy/CPC at the fortification hearing;
(vi) by providing misleading information to the Court regarding Mr Logue's New York apartment after the without notice hearing, in particular in the form of two affidavits (Mr Shaw's seventh and eighth affidavits) sworn in July 2010 shortly before and shortly after the discharge hearing before Roth J;
(vii) by providing misleading information to the Court in relation to Mr McGrath;
(viii) by providing misleading information to the Court as to Mr Logue's prospects of having the 'default' removed in the US; and
(ix) by providing an incorrect explanation as to why the HM Land Registry searches had been added to Mr Evans' first affidavit after it had been sworn.
Grounds of Appeal
(i) GROUND 1: error of approach in failing to identify what evidence was accepted or rejected and to link the evidence which was accepted with the conclusions.
(ii) GROUND 2: failure properly to apply the correct test of dishonesty.
(iii) GROUND 3: failure properly to set out its reasons and reasoning process.
(iv) GROUND 4: failure to make rulings on important matters of law.
(v) GROUND 5: the findings were against the weight of the evidence and/or could not be justified by reference to the criminal standard of proof.
(vi) GROUND 6: proceedings conducted in an unfair manner.
Governing Legal Principles
The Duty of Full and Frank Disclosure
"Particularly in heavy commercial cases, the borderline between material facts and non-material facts may be a somewhat uncertain one. While in no way discounting the heavy duty of candour and care which falls on persons making ex parte applications, I do not think that the application of the principle should be carried to extreme lengths (1359C-E)"
Legal Professional Privilege
Standard of Proof
Dishonesty and Good Character
"The Tribunal may announce its decision and make an order at the conclusion of the hearing or may reserve its decision for announcement at a later date. In either case the announcement shall be made in public and in either case the Tribunal shall as soon as is practicable deliver to the applicant and to the respondent its detailed written findings which shall include its reasons and conclusions upon the evidence before it."
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or important matter or by failing to reach a rational decision on relevant grounds. The reasons need only refer to the main issues in the dispute, not to every material consideration. A reasons challenge will only succeed if the party aggrieved can satisfy the Court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
In my judgment these principles apply to SDTs. In other words, there is nothing in rule 16(5) which requires either a higher or a lower standard of decision-making.
"In this way, in cases involving issues of credibility and reliability, the structured determination of the committee dealing with the various heads of charge, will in itself reveal much about its reasons for reaching its decision. [T]he fact that the practitioner can study a transcript of the hearing, including not only the evidence but the submissions on the evidence by the respective parties, further assists the practitioner in understanding not only which witnesses' evidence the committee accepted and which it rejected, but why it did so."
" while it is perfectly acceptable for reasons to be set out briefly in a judgment, it is the duty of the judge to produce a judgment that gives a clear explanation for his or her order. The second is that an unsuccessful party should not seek to upset a judgment on the grounds of inadequacy of reasons unless, despite the advantage of considering the judgment with knowledge of the evidence given and submissions made at the trial, that party is unable to understand why it is that the judge has reached an adverse decision "
I do not read Lord Phillips MR as saying anything in conflict with the final sentence of paragraph 36 of South Bucks, but Mr Wardell placed reliance on this passage in riposte to Mr Dutton's submissions in Reply. Mr Wardell also drew my attention to paragraph 26 of English where the Court of Appeal made clear that in the event that the appeal Court should decide that the reasons given were inadequate, the choice is between deciding whether itself to proceed to a rehearing or to direct a new trial. I will continue to bear this choice in mind throughout my consideration of this, the key issue in this appeal.
"[Giving reasons for judicial decisions] is a fundamental aspect of good public administration, underpinned increasingly by law, because it focuses the decision-maker's mind on exactly what it is that has to be decided, within what legal framework and according to what relevant evidence and material"
The Approach of this Court on a Section 49 Appeal
Analysis of the Factual Issues
The Without Notice Hearing: Non-Disclosures in relation to the New York Apartment
"you may or may not be right, I really don't know [A2/tab 3/35/line 23]"
Mr Dutton suggested that Mr Shaw was clearly 'bounced' by the question and did not do justice to it, not least because there may have been an alternative source of this information which was privileged. I do not understand that to have been Mr Fenwick's submission to the SDT. However, what might have been submitted was that, although Mr Wardell was quite entitled to make what forensic advantage he could about a witness statement sworn in October 2012, by that stage Mr Shaw clearly did know about the Kahn email and might have been doing himself a disservice in trying (and failing) to put himself back into the mindset which he had when the events covered by paragraph 165 were occurring, namely when the third affidavit was being prepared in May 2010.
Non-Disclosures in relation to Candy/CPC
"But I should not reject it or require it to be fortified in a case of this kind. This is similar to the case of an office holder pursuing people who owe money which should then be available for distribution to creditors [C3/1075]"
Misleading Information Regarding Allegations of Fraud in the US Proceedings
Disclosure of Confidential Information
"CPC decided to assist the Liquidating Trust to determine through the disclosure provisions in the application for the Freezing Order whether the funds to be provided by Mr Logue, through Hayden, to PGGL were tainted and could not in such circumstances be accepted."
Misleading Statements at the Fortification Hearing
"It has not been suggested that they are on a CFA or that they were having to defer their fees. Their fees will no doubt already exceed the cash in the bank, and we are entitled to ask how they are being funded. If someone is paying them, there is no reason why that person or persons should not put up security for costs "
"And I am also instructed that there is no third party funding these proceedings.
MR JUSTICE NORRIS: Are you instructed as to how they are funded?
MR ONIONS: Yes, my Lord, using the $135,000. Those instructing me are considering the possibility in the future of a CFA, but that is not the position at the moment. Those in the US are acting on a contingency fee "
"The evidence on the other side is that the use of the fund for that purpose will have the effect of stifling the claim, because that is the fund out of which legal fees to pursue protective measures in this jurisdiction are currently being met, pending the putting into place of a possible CFA to continue the proceedings
I have of course to look beyond the mere cash fund and consider what else might be made available, whether there are others who could be prepared to stump up security for costs. So far nobody has done so "
"Well I just do know because, had I been there throughout the submissions, at least when the subject matter of third party funding had been raised, the questions would have been directed at me, not Craig, and I would have given different answers."
" there is a difference, a very big difference actually between pure funders and commercial funders when it comes to section 51. I won't go into that but that's not the confusion that occurred here. The confusion that occurred here was third party funding in respect of past costs, i.e. obtaining the freezing order and third party funding going forwards, relating to the discharge proceedings. And the application, as I understood it, for security for costs was in support of your client's application for the discharge, all of which had been served on the same day which I think was the 18th May. So that's where the confusion lies, it's not in the definition of third party funding. And there clearly is a distinction between pure funders and commercial funders. I think the misunderstanding comes with regard to funding going forwards or not."
"I don't disagree with you that there was a muddle and misinformation was given to the Court. It's very, very regrettable that it happened. If I could've avoided it happening I would've avoided it happening. I wasn't there, it wouldn't have happened if I'd been there so it's my fault, I should've been there but there we are, it happened"
"Q. Well litigation costs and legal fees, anyone reading this would think that the Liquidating Trust was using and going to have to use its limited cash reserves to fund Stewarts Law and counsel, would they not?
A. Not necessarily. I mean, I don't specify which legal fees. It was used on some of those costs to cover legal fees in, connected with the English proceedings."
Mr Shaw was apparently referring to disbursements in the US. I cannot accept that this is a remotely tenable interpretation of paragraph 26 of his first witness statement which clearly refers to Stewart Law's fees.
"During the hearing Mr Onions QC informed Mr Justice Norris that this amount had been used in order to pay the legal costs to date has it in fact been used to pay your legal fees as the Court was informed? If not, please explain how it has been spent and clarify how your client proposes to fund counsels' fees and other legal fees in respect of the hearing of our clients' application to discharge the Freezing Order."
"Please note, although not relevant to the request for disclosure concerning third party funding for the defence of the application to set aside, it is the case that some of the Liquidating Trust's initial costs incurred in investigating and obtaining the Freezing Order were provided by a third party, namely CPC Much of the work required to prepare the case for the application for a Freezing Order was carried out in the US however, funds were provided by CPC to cover costs incurred in the UK. It must, however, be pointed out that there was not and is no third party funding agreement in place between CPC (or any other third party) and the Liquidating Trust. CPC provided the assistance on a completely discretionary basis, free of charge, and no obligation or expectation of getting repaid. It was, in effect, a pure gift to the Liquidating Trust.
No direct or indirect benefit has or could have accrued to CPC in return for the assistance rendered, save that if Mr Logue's evidence is accurate, there would appear to be sufficient 'untainted' funds available to proceed with the purchase of the property In view of this, and because it also became apparent, on or about 18th May 2010, that Mr Logue and Hayden would in fact be proceeding with an application to set aside the Freezing Order, no further assistance, directly or indirectly, has been provided by CPC."
"We have reviewed a transcript of the 21st May hearing. At this hearing Mr Onions QC informed Mr Justice Norris that the Liquidating Trust's funds to pay legal costs were 'now less than $135,000 ' Mr Onions QC also stated that he was 'instructed that there is no third party funding these proceedings'. Mr Onions QC further informed Mr Justice Norris that the Liquidating Trust had been funding the UK proceedings 'using the $135,000' and that Stewarts Law 'are considering the possibility in the future of a CFA, but that is not the position at the moment'. Your firm was aware that CPC had been providing substantial funding and assistance to the Liquidating Trust. Therefore, given that the Liquidating Trust had access to funding over and above the $135,000, it would seem that you were aware that the Court was being misled."
"The way in which you have interpreted the words of Mr Onions does not fully accord with our recollection of what was discussed. Our understanding is that the Court was concerned to understand the availability of funds for defending the application to set aside. The Liquidating Trust had less than $135,000 in its account to meet future and other expenses, although it was made clear that it did have property assets in the Caribbean (albeit not in liquid funds). The unsecured creditors would not provide funding going forward, nor was there any third party funding available."
"Q. But you are an officer of the Court and you are duty bound, if the Court has been inadvertently misled, you are professionally bound to make sure it is corrected.
A. And it was corrected. I made sure it was corrected. I made sure that your client was not out of pocket.
Q. But you never corrected-
A. It was sorted out"
Misleading Information Regarding Mr Logue's New York Apartment Provided in July 2010
"My firm was not aware of Mr Kahn's affidavit or its contents but it is accepted that the Liquidating Trust should have had access to Mr Kahn's affidavit prior to the ex parte hearing. I apologise on behalf of the Liquidating Trust for the fact that the Court was not made aware of the contents of Mr Kahn's affidavit."
"Please also make the point that you had no prior conversations with Mr Kahn about failed service."
This request might be interpreted in one of two ways. Either in July 2010 Mr Turnbull had genuinely forgotten about the earlier Kahn or he was asking Mr Wiesner to depose to a fact which he, Mr Turnbull, knew to be untrue. The latter appears implausible.
"I cannot say that I had no prior conversations with Mr Kahn about failed service. I knew that the service failed, which is why we went hunting for Logue in England. I am happy to do the rest."
"Our concern is that this knowledge should have been disclosed to the Court. When did you speak with Kahn? Did you discount the significance of what he told you because by the time of the conversation we already believed that Logue was in London? I do not recall instructing Knuckey on the basis that there had been a failed service in NY."
Again, the more plausible explanation for this email is that in July 2010 Mr Turnbull had honestly forgotten about exactly what had happened in April. In fact, the reason for Mr Knuckey's instruction was indeed that there had been a failed service in New York, but if Mr Turnbull did not believe that to be so this would have been a rather cack-handed lie to another lawyer who, as it happens, was making it clear that he wanted to tell the Court the truth. On the other hand, and as I shall be explaining, this email, and others, could be interpreted in a different way.
"I received an email from Kahn on about April 12. I exchanged emails with you and Jennifer O'Neill (as well as phone calls with Jennifer) around that time as to whether Logue had been served. Because Logue was no longer at his address we discussed hiring a skip tracer and an investigator to find him. I believed that everyone was aware at that time that Logue was no longer living at Park Avenue, which is why we were having those conversations. At that point an investigator was already at work in England and we believed he would be served."
"Thanks for the clarification.
It looks like we have overlooked your email on 12 April and as a result need to deal with why this is not mentioned in your affidavit. In the circumstances, could you please provide us with an affidavit confirming that:
1. the alleged post-dating is wrong by reference to the test sheet.
2. you received an email on 12 April from Kahn confirming the matters set out in the affidavit.
3. you did not refer to the email in your first affidavit because by the time you swore your affidavit you believed as a result of information provided by Mr Knuckey that Logue was in London rather than NY and that the Trust's belief that Logue was in London rather than in New York had been communicated to the Court.
Mr Turnbull confirmed in evidence that by the time he sent this email he had reviewed his saved emails and had located the Kahn email of 12th April [A3/Tab 5/76/line 5]. My interpretation of the evidence is that he had also spoken to Mr Shaw.
"MR JUSTICE ROTH: I know he does not say that he is evading service now. That is said by, I think, Mr Shaw. It deals with specifically the service that was attempted in New York in 2008 and it does not deal with the later attempt at service, but as an affidavit which expressly acknowledges the obligation of full and frank disclosure, I would have thought that any lawyer, albeit an American lawyer, would realise that this may be relevant.
MR ONIONS: My Lord, the position is, I am instructed, that Mr Wiesner understood that the Court was going to be told that Mr Logue was in London, and in those circumstances did not consider that he had told Mr Shaw that the postal service had been returned as 'undeliverable.'"
"Clearly Mr Shaw would not have done that [depose to paragraph 47(ii) of his first affidavit] if he had known, which I fully accept he did not because he was not told, about what had happened with service.
To rely on that as supporting the proposition that there are good grounds to suppose Mr Logue is seeking to evade service without telling the Court that, on the other hand, what happened on the attempted service does seem to me to be withholding material evidence. I accept Mr Shaw did not know that, but to say that it is not material and it therefore need not have been placed before the Court and it does not shed a different light upon what he has said about Mr Logue's attempt to evade service, I find that very hard to swallow"
"I understand from Mr Wiesner that despite not receiving the fax on 17th April 2010 he was told by Mr Kahn in mid-April 2010 of the facts set out in Mr Kahn's affidavit dated 30th April 2010. I am told by Mr Wiesner that the reason why he did not mention this in his first affidavit is because he thought it was sufficient that the Court had been told that it was believed that Mr Logue was by then in London."
"-obviously I'd spoken to Andrew about this and the view was taken is you know, 'we hadn't', you know, we had overlooked it, hadn't appreciated the significance of it. Mr Wiesner, you know, he was we sent him the affidavit, he could have flagged it up for us"
"Q. But you must have been feeling deeply uncomfortable about this?
A. Well, I you know, I went to Andrew about it, I mean
Q. So the truth is that you bowed to his greater experience?
A. I deferred to him to decide what to do, I mean I think as any person in my position would have done that.
Q. Yes, and was it his idea that Mr Wiesner should be asked to say something that really wasn't fair on Mr Wiesner and wasn't quite accurate? If you go to 1586-
Q. Your point three is really not on, is it, so far as fairness to Mr Wiesner is concerned
A. I think that's true isn't it. He did believe he was in London rather he said that
A. Well, I mean, I think I understood it was by the time he he could have mentioned it is clearly the thought processes rightly or wrongly Jeff could have mentioned it because he was the person dealing with the process servers or Mr Kahn. Why didn't he mention it in his affidavit? He didn't mention it when he signed his affidavit in 26th April or whenever it was because he already thought Mr Logue was in London because of what Mr Knuckey had told him
Q. But it's not an honest explanation.
Q. Looking at it now, it's not an honest explanation, is it?
A. I don't really think it's wholly dishonest, but you know, that's for the Tribunal to decide. It's not I don't think it's for me to decide.
Q. It's disingenuous isn't it?
A. Again that's something for the Tribunal to decide.
Q. Well I'm asking you Mr Turnbull.
A. Possibly, but you know I could see I could see the logic at the time. It's in retrospect far from good. I've tried to explain the situation."
"Mr Fenwick said that with the benefit of hindsight the First Respondent would have realised that the error should have been corrected but the fact that he had not done so did not mean that he had decided to be dishonest and risk his reputation of 30 years. Mr Fenwick stated that if the Tribunal believed that there had been a conspiracy then the situation would be different. He asked the Tribunal to note that the Second Respondent's admission in evidence that he had suggested to Mr Wiesner had not been 'wholly dishonest' must be seen in context. He had been answering questions at the end of a long and arduous cross examination and he had been looking at the situation now rather than at the time."
Analysis of the Grounds of Appeal
Misapplication of the Correct Test of Dishonesty and the Criminal Standard of Proof
Various Failures of Approach
Legal Professional Privilege
The Relevance of Roth J's Judgment dated 23rd July 2010
The Role of Counsel
Separate Treatment of the Allegations and the Withdrawal of the Majority of the Allegations of Dishonesty against Mr Turnbull
Unfairness in the Conduct of the Appeal
SDT's Findings 'Plainly Wrong'
The Appellants' Case
"Thus, Mr Shaw was focusing on the Kahn Affidavit and documents attempted to be served which had been returned as undeliverable under separate cover. At paragraph 14 of Mr Shaw's Eighth Affidavit [C4/1654] he faithfully relays the fact that Mr Wiesner had carried out further investigation and that the reason why there is an inconsistency between the date of the fax and the date of Mr Kahn's Affidavit is because Mr Kahn's fax machine recorded the date of the fax incorrectly and that the fax in question was received on 30 April 2010. This, together with the allegation relating to "and returned under separate cover as undeliverable" was the focus of the evidence. In the next paragraph (15 at C4/1655) Mr Shaw says that he understands from Mr Wiesner that despite not receiving the fax on 17 April he was told by Mr Kahn in mid-April of the facts set out in Mr Kahn's Affidavit dated 30 April. The last sentence "I am told by Mr Wiesner that the reason why he did not mention this in his First Affidavit is because he thought it was sufficient that the Court had been told that it was believed that Mr Logue was by then in London". Although Mr Wiesner had sent the email at [C4/1585] it does not follow that his failure to mention this in the First (Wiesner) Affidavit is not for the reason given. If the parties had been working on the basis that Mr Wiesner was to deal with the question of service and had, as the contemporaneous material tended to indicate, overlooked the contents of the Kahn Affidavit, then what is said in paragraph 15 is not wholly inaccurate, but in any event is not subjectively dishonest.
In all the circumstances the Finding in 156.79 is unsustainable"
The Reasons Challenge
"The Respondents had provided misleading information to the Court as to whether the Applicant still lived at the New York apartment, had suppressed information regarding the Applicant's place of residence and had failed to disclose other relevant information relating to the questions of whether the Applicant was evading service and likely to dissipate his assets. They had failed to disclose the existence of the Kahn and Udvardy e-mails and had not told the Court about Mr Knuckey's telephone conversation with the Applicant on 15 April 2010. There had been a particular need for the Respondents to comply with their duty of full and frank disclosure at the Without Notice hearing and they had failed to do so. Accordingly, the Tribunal found allegation 1.1 to be substantiated against both Respondents.
The Tribunal did not find the First Respondent's explanation for "overlooking" the Kahn e-mail to be convincing. In particular, the First Respondent had admitted, at the time of swearing his third affidavit, that he was aware that the Applicant's telephone number was no longer in service and he could only have obtained this information from the Khan e-mail. This amounted to dishonest conduct on the part of the First Respondent and accordingly the Tribunal found allegation 1.2 proved against the First Respondent. The Tribunal also found that the Respondent's failings constituted a breach of the Code of Conduct and therefore found allegation 1.3 to be substantiated against both Respondents."
"The Respondents had been under a duty to provide full and frank disclosure at the Without Notice hearing and so information regarding the involvement of Mr Candy/CPC should have been provided to the Court. It was not for the Respondents to be selective as to what material should or should not be disclosed, if arguably, this was likely to influence the Court. Accordingly, the Tribunal found allegations 2.1 and 2.2 to be substantiated against both Respondents on the basis that matters pertinent to the funding of the litigation were not disclosed to the Court nor [sic] that third parties might have an interest in the outcome of the Without Notice hearing. The Tribunal considered that the failure to disclose these matters amounted to dishonest conduct on the part of the First Respondent and therefore found allegation 2.3 proved. The allegation of dishonesty in respect of allegation 2.3 was not being pursued against the Second Respondent. The Respondents' conduct did amount to breach of the Code of Conduct and accordingly the Tribunal found allegation 2.4 to be substantiated against both Respondents."
"The Tribunal agreed that the disclosure of confidential information regarding the Applicant's assets did amount to a breach of an implied obligation of confidence and/or implied undertaking to the Court and constituted a breach of CPR 31.22. Accordingly, the Tribunal found allegation 4.1 substantiated against both Respondents because they were satisfied that such confidential information had been disclosed to Jones Day and must therefore have been at risk of being further disclosed by them to their clients, Mr Candy/CPC, although such further disclosure was not found by the Tribunal as a matter of fact. The Tribunal did not consider that allegations 4.2 and 4.3 had been proved to the requisite standard and the allegation of dishonesty was not pursued against the Second Respondent in respect of allegation 4.2. However the Tribunal did consider that the First Respondent's conduct in relation to allegation 4.2 (but not the Second Respondent's) had shown a reckless disregard for his duty as an officer of the Court. The Tribunal also found that the First Respondent's and the Second Respondent's failings amounted to a breach of the Code of Conduct and therefore found allegation 4.4 substantiated against both Respondents."
"The Tribunal agreed that the statements given by Mr Onions at the Fortification Hearing had been misleading and that the evidence filed for the hearing had also been misleading by failing to mention that Mr Candy/CPC had provided funding to the Liquidating Trust. The Tribunal considered that this failure constituted a breach of the Respondents' obligations to provide full and frank disclosure and of their duty not to mislead the Court. Accordingly, the Tribunal found allegations 5.1, 5.2 and 5.3 proved to the requisite standard. The Tribunal considered that the First Respondent had been dishonest in permitting Mr Onions to give the statements referred to and found that he had been dishonest in his affidavit and accordingly found allegations 5.4 and 5.6 to be substantiated against the First Respondent. The allegations of dishonesty were not being pursued against the Second Respondent. The Tribunal agreed that the Respondents had failed to correct the incorrect and misleading statements given by Mr Onions and therefore found allegation 5.5 proved against both Respondents. The Respondents' conduct amounted to a breach of the Code of Conduct and accordingly the Tribunal found allegation 5.7 to be substantiated against both Respondents."
"You must never deceive or knowingly or recklessly mislead the Court or knowingly allow the Court to be misled"
"Rule 11.01 makes a distinction between deceiving the Court, where knowledge is to be assumed, and misleading the Court, which could happen inadvertently. You would not normally be guilty of misconduct if you inadvertently misled the Court. However, if during the course of proceedings you become aware that you have inadvertently misled the Court, you must, with your client's consent, immediately inform the Court. If the client does not consent, you must stop acting "
"The Tribunal agreed that the Respondents had provided misleading information to the Court regarding the Applicant's New York apartment after the Without Notice hearing and accordingly found allegations 6.1, 6.2 and 6.3 to be substantiated against both Respondents. Tribunal had been asked to find that both Respondents had been dishonest. The First Respondent had provided a misleading explanation to the Court regarding his knowledge of the Kahn e-mail in his seventh and eighth affidavits. The Second Respondent had assisted in the drafting of the affidavits and the Respondents had discussed the fact that the Kahn e-mail had been "overlooked". The Second Respondent would therefore have known that the explanation given by the First Respondent in his eighth affidavit was not true yet he had allowed it to be put before the Court. Accordingly the Tribunal found that the Respondents' conduct as set out in allegation 6.3 had been dishonest so that allegation 6.4 was substantiated against both Respondents. The Respondents' conduct amounted to a breach of the Code of Conduct and so the Tribunal found allegation 6.5 to be substantiated against both Respondents."
Mr Turnbull's Appeal Against Sanction
"In relation to the Second Respondent, the Tribunal did not consider that the dishonesty which had been found proved against him had been carried out in a 'moment of madness'. Whilst the Tribunal had sympathy for the Second Respondent as a young solicitor, he had still been under a duty to put right what he knew should have been placed before the Court. He should have had the strength of character to refuse to do something which he had known to be wrong. The Tribunal did not consider that there were any exceptional circumstances that would justify a penalty other than striking off in a situation where the Second Respondent had been found to be dishonest"
Appellants' Note on Respondent's References in the SDT to Roth J's Judgment
Appellants' Note on the Effect of the Freezing Order on the Agreement for Lease
Appellants' Reply Submissions
Appellants' Note on Input to Drafting
Appellants' Note on Compartmentalisation
Respondent's Response to the Appellants' Reply Submissions
Appellants' Skeleton Argument for the Hearing on 13th January 2014
Respondent's Skeleton Argument for the Hearing on 13th January 2014
|24.01.05||The Respondent leaves the Retreats Group and receives a $3.65 million payment.||W1/1/14-15, paragraph 48|
|01.04.05||The Retreats Group commences proceedings against the Respondent seeking redress for "breach of contract, breach of fiduciary duty, defamation, slander, tortious interference with prospective business relations, conversion and duress."||C1/10-33
|06.04.05||The Respondent commences proceedings against the Retreats Group and Mr McGrath. Paragraph 23(d) of the Complaint alleged that Mr McGrath had been engaged in a Ponzi scheme.||C1/34-57
|14.09.05||Retreats Settlement between Mid-Atlantic Capital Foundation ("Mid-Atlantic"), the Respondent, Retreats Group and Mr McGrath. Mid-Atlantic obtained ownership of the Paris Apartment, assumed the liabilities and benefits of the Knightsbridge Apartments, gave up any rights regarding the Umbria property and received £185,000 in cash.||C1/72-83|
|04.11.05-06.01.06||Eden (now Hayden) completes on three of the Knightsbridge Apartments and Emma Logue acquires the fourth.||W1/1/15, paragraph 53|
|08.02.07||Eden (now Hayden) enters into Agreement for Lease with PGGL in relation to the One Hyde Park Apartment and First Deposit (of £1,724,055) is paid.||C1/373-427
W1/1/20, paragraph 78
|27.02.07||Second Deposit (of £1,149,370) is paid.||W1/1/20, paragraph 78|
|19.05.08||Third Deposit (of £1,724,055) is paid.||W1/1/20, paragraph 78|
|22.07.08||Liquidating Trust issues US Complaint.||C1/288-324|
|31.07.08||According to Mr Wiesner, he mails a copy of the US Complaint to the New York Apartment.||C1/325-327|
|06.08.08||US Complaint allegedly delivered at the New York Apartment. The Respondent says that he did not receive this.||C1/325-327|
|16-23.12.08||Process server attempts to personally serve the Respondent at the New York Apartment on five occasions. The Respondent has given evidence that he was not in New York in December 2008. The doorman at the apartment told the process server on 18 December 2008 that the Respondent had left for work. Uncovered copy of the US Complaint left with the doorman.||C1/328-330
W1/1/18, paragraph 65
|02.01.09||Summons allegedly resent to New York Apartment by mail.||C4/1662|
|08.01.09-18.01.09||The Respondent states that he was in residence at the New York Apartment over this period. The Respondent says that on arrival at the Apartment in January 2009 he discarded all of his mail unread (including the US Complaint).||C3/1253|
|30.04.09||The Respondent vacated the New York apartment after terminating the rental agreement.||W1/1/18, paragraph 68|
|16.07.2009||US Court enters default in the US Complaint against the Respondent and Mid-Atlantic.||W1/1/18, paragraph 69|
|21.09.09||Liquidating Trust filed motions for the perfection of the default into a default judgment against the Respondent, Mid-Atlantic and Mr McGrath. Motion denied due to procedural failure to serve a request of hearing.||C1/341-350|
|20.10.09||The Respondent writes to Nick Williams of Candy & Candy complaining about variations between the floor plan attached to the Agreement for Lease and the floor plan being constructed, stating that PGGL was in breach of the Agreement for Lease and requesting specific performance.||C1/355-360|
|03.12.09||Land Registry searches in respect of the Four Knightsbridge Apartments obtained by the Candys/CPC||C2/458-468|
|04.12.09||Emails between Mr Meis (a US Attorney for the Liquidating Trust), Mr Smith of CPC and RISC proposing that Mr Smith call Mr Evans, the Trustee of the Liquidating Trust, to discuss areas of mutual interest.||C2/469|
|28.01.10||Email from Martin Woods (of Hermes) to Mr Meis stating, 'can you enlighten me as to your options should you secure a judgement against Logue and identify assets of value in the UK? In essence should the economics of a proposal be positive can you apply any extra-territoriality to your judgement in an effort to secure the assets for the creditors?' (underlining added).||C2/488|
|12.02.10||Gordons (acting for the Respondent) sent a letter to S J Berwin (acting for companies associated with Mr Candy) referring to a call between Mr Candy and the Respondent on 8 February 2010, "Mr Candy ....proceeded to inform Mr Logue that he had received a call from a private investigator who claimed that, notwithstanding the Apartment has been purchased by our client, Hayden Holdings (a Liechtenstein based Foundation), a US based company, with which our client has never had any relationship whatsoever, was contemplating seeking a charge against "[Mr Logue's] apartment at One Hyde Park"."||C2/493-494|
|16.02.10||A1 introduces himself to Mr Evans by email. A1 states, 'We have recently come across Mr Logue again in the UK concerning various properties he has acquired in London through a Liechtenstein Foundation of dubious antecedents, which we understand comprised part of the highly questionable McGrath/Logue settlement. We would like to discuss with you possible ways in which this property and Logue's other funds may be secured for the benefit of any Judgment you are able ultimately to secure against Mr Logue'.||C2/495|
|17.02.10||Email from A1 to Mr Meis mentions that Mr Logue has some of the Knightsbridge Apartments for sale, "so the sooner we secure the assets in the UK the better, before funds disappear back into Liechtenstein".||C2/496
|17.02.10||Mr Meis responds to A1 stating, "we are very interested in this matter, and agree on the need for quick review and, hopefully, action."||C2/496|
|19.02.10||Letter from S J Berwin to Gordons referring to US Bankruptcy Proceedings in the District of Connecticut and raising concerns that funds used by Hayden in respect of the acquisition of One Hyde Park may be tainted.||C2/502-503|
|01.03.10||Meeting in Boston between A1, Mr Smith, the Trustee and the US Attorneys (including a representative from Jones Day).||W1/1/57, paragraph 211|
|19.03.10||Letter from Gordons to S J Berwin referring to a call received by the Respondent from a private investigator from Kroll informing him that if he completed on the acquisition at One Hyde Park "the Apartment could be seized by a US bankruptcy administrator acting for a US based company with which our client has no relationship whatsoever." Gordons also state that, 'we have carried out full checks on our client and have no doubt as to Hayden Holdings legitimacy or the provenance of its funds'.||C2/551|
|05.04.10||Liquidating Trust files motion for entry of separate and final judgment against Mid-Atlantic and the Respondent.||C2/578-580|
|06.04.10||Status conference before US Court. Quantification Hearing scheduled for 5 May 2010 and Liquidating Trust is required to serve the Respondent and Mid-Atlantic with evidence on which it will rely by 29 April 2010.||W1/1/26, paragraph 97|
|09.04.10||Email from Mr Wiesner to Mr Kahn attaching documents for service on the Respondent. Mr Wiesner also states: 'please attempt to confirm that he lives at the address below and recite any information gained in your affidavit'.||C2/618|
|c.12.04.10||A2 starts work on preparing evidence for Freezing Order application.||A3/4/5-7|
|12.04.10||A1 emails Ms O'Neil thanking her for her update on the proposed service on the Respondent.||C2/632|
|12.04.10||A2 emails Ms O'Neil asking for confirmation that the Respondent was served on 09.04.10 at his New York address. A2 also states: '[w]e also understood that a paralegal from your firm would be making discreet enquiries with the doorman in order to check that Logue was still resident at the New York address. Please confirm whether such enquiries have been made'.||C2/637|
|12.04.10||Email from Mr Kahn to Mr Wiesner stating that (i) the doorman at the New York Apartment was not familiar with the Respondent (ii) the Respondent was not included in the tenant list and (iii) that the number listed for the Respondent in the telephone directory was no longer in service.||C2/642A|
|12.04.10||Mr Wiesner forwards Mr Kahn's email to A1, A2, Mr Evans, Mr Meis, Ms O'Neil, Ms Laukitis, Mr Peters and Mr Stern suggesting that an investigator be employed to find the Respondent. He also queried whether there was a known address to serve the Respondent in England and suggested that the papers served by mail may "if he truly moved" allow them to determine a forwarding address.||C2/642A|
|12.04.10||Ms Laukitis emails A1 and A2 (copying in Ms O'Neil) on the same email chain containing Messrs Kahn's and Wiesner's emails stating: 'I recall that you had used someone in the past to locate Logue here in NY would it be easiest to use the same person?'.||C2/643|
|12.04.10||A2 emails Mr Wiesner (copying in Ms Laukitis and Mr Meis) agreeing that an investigator should be instructed as soon as possible.||C2/650|
|13.04.10||Email from Mr Wiesner to A1, A2, Ms O'Neil, Ms Laukitis and Mr Meis informing them that he knows of an investigator called Mike Udvardy who is very good at finding people.||C2/661|
|13.04.10||Email from Mr Wiesner to Ms O'Neil asking whether 'Andrew's and Craig's client [is] going to cover the cost of the investigator?'.||C2/660|
|13.04.10||Email from Ms O'Neil to A1 and A2 stating that she had spoken to the skip tracer (Mr Udvardy) who will be employed in an attempt to track the Respondent and asking for further information about the Respondent.||C2/663|
|13.04.10||A2 emails Mr O'Neil with further information about the Respondent.||C2/662-663|
|13.04.10||A2 emails Ms O'Neil asking for the final version of the documents which the process server recently attempted to serve on the Respondent.||C2/664|
|14.04.10||Mr Wiesner forwarded an email from Mr Udvardy to A1, A2, Mr Meis and Ms O'Neil, which stated that the "initial info" was that the Respondent moved out of the New York Apartment 'about a year ago'.||C2/667|
|15.04.10||A2 email (in reply to Mr Wiesner's email of 14.04.10) stating that Mr Knuckey had spoken to the Respondent and was told that he was spending two days a week in London and the remainder of the week in Trieste.||C2/667
|19.04.10||Ms O'Neil emails Ms Laukitis and Mr Wiesner stating that A2 has informed her that they are in the final stages 'of preparing the necessary pleadings for the freezing order proceedings'.||C2/713|
|21.04.10||Email from A2 to Mr Wiesner and Ms O'Neil querying how the US Attorneys proposed to deal with the issue of back pay.||C2/744|
|21.04.10||Credit report links the Respondent to the New York Apartment||C2/588-594|
|22.04.10||Data from the Business Register updated as at 22 April 2010 listed the Respondent's 'Place of residence' as the New York Apartment in respect of his directorship of Italian company Uno Ponterosso.||C2/581-587|
|22.04.10||Having received confirmation from Jones Day that CPC would fund the cost of enforcement proceedings before the High Court and would contribute to costs associated with expert reports and testimony, as necessary to secure the default judgment against the Respondent, Mr Evans signed and returned Stewarts Law's retainer letter on behalf of the Liquidating Trust.||C2/733-737|
|23.04.10||The Respondent says he became aware of the US Proceedings as a result of a voicemail message left by a Mr Knuckey, who had been attempting to serve the Respondent in London with evidence relating to the US Quantification Hearing.||C3/1257, paragraph 28|
|23.04.10||A2 emails the three draft affidavits in support of the freezing injunction to Mr Evans and Mr Wiesner.||C2/756-854|
|23.04.10||Mr Wiesner emailed A2 stating that he had amended his draft affidavit with assistance from Jones Day. Mr Wiesner had amended the description of the allegations pursued by the Liquidating Trust, deleting the reference to constructive fraud and providing a paragraph in support of an assertion of fraudulent intent. Mr Wiesner also stated: 'I am particularly concerned about paragraph 2, which says that I "swear in respect of matters within my own knowledge, save where otherwise stated." Is there any place where it is otherwise stated? The allegations against Logue in our complaint are only allegations. As a technical legal matter, they are deemed to be true by virtue of his failure to contest them in the case, but it seems to me that is a different matter from me swearing on personal knowledge that they are actually true. I haven't gone through to figure out how to deal with the issue, but wanted to make you aware of it'.||C2/855; C3/878-879|
|26.04.10||First Affidavit of Douglas Evans||C3/904-950|
|27.04.10||First Affidavit of Jeffrey Wiesner||C3/952-972|
|28.04.10||First Affidavit of Andrew William Shaw||C3/999-1029|
|28.04.10||Mr Knuckey sends his report regarding his attempts to serve the Respondent in London.||C3/1142-1149
|29.04.10||Without Notice Hearing before Morgan J. Worldwide freezing order granted for c. $9.6m.||C3/1056-1087|
|30.04.10||Verdolino & Lowey report confirmed that there were no wage or liability accruals in the Debtors' accounting records or its Auditors' work papers to suggest that the January 2005 Payment to the Respondent constituted unpaid liabilities.||C3/1112-1126|
|30.04.10||Kahn Affidavit confirming failed attempt at service at the New York Apartment on 9 April 2010 and that (i) the Respondent was unknown to the doorman (ii) the Respondent was not listed in the resident directory, and (iii) the number listed for the Respondent in the telephone directory was no longer in service.||C3/1111|
|06.05.10||Letter from Withers to Stewarts Law stating that Withers had been instructed by the Respondent, Hayden and Emma Logue and that they intended to apply to discharge the Freezing Order.||C3/1179|
|10.05.10||A2 sent an email to the US Attorneys (including Jones Day) attaching Withers' letters of 6 and 7 May, which contained information regarding the Respondent and Hayden's UK property.||C3/1171-1187|
|12.05.10||A1 swears his Third Affidavit confirming service of the freezing order at the New York Apartment and in London, (at the Respondent's London address and on Gordons Solicitors) in accordance with the Order. The Affidavit exhibited a statement from Bronoco Crnobrnja, a doorman at the New York Apartment, which referred to the fact that the Respondent had moved out.||C3/1222-1244; C3/1210A|
|18.05.10||CPC pays £24,425 to Stewarts Law||W1/10/9|
|19.05.10||Email from Mr Wiesner advising that if the Respondent's evidence (regarding the disposal of his mail from the New York Apartment unread) was believed "he has a good chance of the default being removed" in the US Proceedings. However, Mr Wiesner thought that the Respondent's evidence was not very credible.||C3/1285|
|20.05.10||A1 Witness Statement in response to the Respondent's application for fortification and security for costs.||C3/1300-1314|
|21.05.10||Fortification Hearing before Norris J||C3/1330-1352|
|25.05.10||The Respondent files a motion in the US Proceedings to vacate the default.||C4/1360-1390|
|02.06.10||Letter from Withers to Stewarts Law raising, amongst other things, the statements made by Mr Onions QC at the Fortification Hearing and asking for clarification of the position.||C4/1429-1432|
|03.06.10||Letter from Stewarts Law to Withers enclosing notice of funding in respect of a CFA.||C4/1433-1435|
|03.06.10||Fifth Affidavit of A1. Paragraph 54(i) states that, "the motion of default remains in place and according to Mr Wiesner it will be very difficult for Mr Logue to have this removed." Paragraph 37 included, 'I also consider it highly likely that Mr. Logue's 'blackmail' continued until the time of the Settlement Agreement '.||C4/1436-1469|
|08.06.10||CPC pays £40,063.50 to Stewarts Law||W1/10/9|
|09.06.10||Letter from Stewarts Law to Withers re: funding explaining that the Liquidating Trust had set aside $30,000 for further disbursements (principally Counsel's fees), but that Stewarts Law's fees for the forthcoming Discharge Hearing were covered by the CFA in place between Stewarts Law and the Liquidating Trust. Stewarts Law also confirmed that the allegation of fraudulent transfer under Section 548 of the Bankruptcy Code is one of constructive fraud.||C4/1486-1488|
|22.06.10||CPC pays Stewarts Law £92,483.00||W1/10/9|
|06.07.10||A1's Seventh Affidavit (amongst other things) responds to the Respondent's allegation that the Kahn affidavit had been backdated and that this document had been deliberately suppressed at the Without Notice Hearing. A1 apologises on behalf of the Liquidating Trust to the Court that the Court was not made aware of the Kahn affidavit and states that Stewarts Law was not aware of the affidavit or its contents.||C4/1592-1598|
|06.07.10||Mr Wiesner advises A2 of the explanation for the wrong fax transmission date appearing on the Kahn affidavit.
Mr Wiesner reminds A2 of the 12 April Kahn email. A2 responds that this had been overlooked and asks Mr Wiesner to provide an affidavit confirming that, ' you did not refer to the email in your First Affidavit because by the time you swore your affidavit you believed as a result of information provided by Mr. Knuckey that Logue was in London rather than NY and that the Trust's belief that Logue was in London rather than in New York had been communicated to the Court'.
|06.07.10 08.07.10||Discharge Hearing||C4/1599-1649|
|08.07.10||A1's Eighth Affidavit confirms that the Kahn affidavit had been correctly dated 30 April 2010 and that the allegation of backdating was unfounded. A1 adds that Mr Wiesner had advised that he had been told of the facts set out in Mr Kahn's affidavit by Mr Kahn in mid-April, but that this was not mentioned in his First Affidavit as Mr Wiesner thought it was sufficient that the Court had been told that it was believed Mr Logue was in London.
A1 also explained the accidental inclusion of updated Land Registry documents in exhibit DE1.
|19.07.10||Letter from Withers to Stewarts Law enquiring as to whether the CFA was a full or partial arrangement and whether Mr Candy had provided any funding.||C4/1680|
|23.07.10||Roth J Judgment - Freezing Order discharged.||C4/1685-1706|
||Letter from Stewarts Law to Withers confirming that some of the initial costs of investigating and obtaining the Freezing Order had been funded by CPC 'on a completely discretionary basis, free of charge, and with no obligation or expectation of being repaid
in effect, a pure gift
Stewarts Law also state: ' CPC decided to assist the Liquidating Trust to determine through the disclosure provisions in the application for the Freezing Order whether the funds to be provided by Mr Logue, through Hayden, to PGGL were tainted and could not in such circumstances, be accepted No direct or indirect benefit has or could have accrued to CPC in return for the assistance rendered, save that if Mr Logue's evidence is accurate, there would appear to be sufficient 'untainted' funds available to proceed with the purchase of the property from PGGL, over and above the approximate US$10 million being claimed by the Liquidating Trust against Mr Logue in the US Bankruptcy Court proceedings'.
|05.08.10||Letter from Withers to Stewarts Law raising queries over the content of Stewarts Law's letter of 30.07.10 and the evidence provided, and statements made, to Norris J at the Fortification Hearing. Withers state, in respect of the statements made by Mr Onions QC, that 'it would seem that you were aware that the Court was being misled'. Withers then ask a number of questions.||C4/1723-1726|
|05.08.10||Email from A2 to Mr Wiesner, Mr Peters and Mr Panos (copied to A1, Mr Evans and Mr Meis) referring to Withers' letter received earlier that day and stating: 'The way this is presented to the other side needs to be very carefully considered as part of the English proceedings and at this delicate stage of negotiations, please could everyone be acutely aware of not making any reference to Mr Candy and/or CPC Group to Logue's lawyers without first discussing this with us. Doug Evans is acutely aware of the sensitivity in this regard'.||C4/1721|
|13.08.10||Letter from Stewarts Law to Withers in which Stewarts Law state (amongst other things) that: '[t]he way in which you have interpreted the words of Mr Onions does not fully accord with our recollection of what was being discussed and the context in which those words were said
Stewarts Law also state: '[a]s far as we are aware, neither CPC, nor any other related party, has to date entered into any legally binding "payment guarantee" with the Liquidating Trust with regard to Solicitors fees, Counsel's fees or disbursements incurred in relation to the pre-Judgment Freezing Order obtained and certainly not in respect of those incurred after 24 May. As previously explained, payments were made on an entirely voluntary basis on CPC's part, and if not made, could not be compelled'.
|17.09.10||Mr Candy/CPC enter into third party funding option agreement with the Liquidating Trust in respect of the US Proceedings and subsequently, as an option fee, discharge the Interim Costs Order of £164,500 issued in the Respondent's favour in the UK proceedings.||C5/1865-1884|
|22.12.10||The Respondent issued an application to join CPC to the UK Proceedings for the purpose of seeking an Order pursuant to Section 51 of the Supreme Court Act 1981 requiring it to pay additional costs awarded by Roth J in the July Order.||C5/2063-2065|
|10.01.11||Letter from Stewarts Law to Withers confirming that CPC consented to be joined to the UK Proceedings. Stewarts Law state that the 'assistance rendered by CPC was given for the reasons already explained to you and not for the reasons speculated in your client's Witness Statement'.||C5/2066-2070|
|08.02.11||CPC pays Stewarts Law £50,550.00||W1/10/9|
|02.06.11||The Respondent serves subpoenas on Jones Day, Ms Laukitis and Ms O'Neil requesting production of all documents associated with the Respondent or Mid-Atlantic. Liquidating Trust notified of the request.||C6/2276-2305|
|15.06.11||Jones Day discloses 4,609 pages of documents.||C6/2376|
|07.07.11||Letter from Jones Day (copied to A1 and A2, the Appellants say, for the first time) asserting inadvertent disclosure of privileged documents.||C6/2565|
|13.07.11||Default vacated in the US Proceedings.||C7/2577-2596|
|09.02.12||Settlement of the US Proceedings between the Liquidating Trust, the Respondent and Mid-Atlantic.||C7/2851-2860|
|25.05.12||The Respondent lodges his First Witness Statement at the Solicitors Disciplinary Tribunal raising allegations against A1 and A2.||W1/1|
|19.10.12||First Witness Statement of A1 (Tribunal Proceedings)||W1/2|
|19.10.12||First Witness Statement of A2 (Tribunal Proceedings)||W1/3|
|30.11.12||Second Witness Statement of the Respondent (Tribunal Proceedings)||W1/4|
|08.01.13||Second Witness Statement of A1 (Tribunal Proceedings)||W1/5|
|23.01.13||Third Witness Statement of the Respondent (Tribunal Proceedings)||W1/6|
|25.01.13||Third Witness Statement of A1 (Tribunal Proceedings)||W1/12|
|25.01.13||Second Witness Statement of A2 (Tribunal Proceedings)||W1/13|
|04.02.13-14.02.13||Hearing before the Tribunal||A2-A3|