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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Gray v Avadis  EWHC 1830 (QB) (30 July 2003)
Cite as:  EWHC 1830 (QB)
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QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Benjamin Gray
|- and -
Miss Lorna Skinner (instructed by Reynolds Porter Chamberlain) for the Defendant
Hearing dates : 11 July 2003
Crown Copyright ©
Mr Justice Tugendhat :
'Mr Avadis has stated in two letters to the Law Society that the claimant "… clearly suffered from mental illness" and has further stated that he doubted I would ever have contact with my two sons (in another letter to the Law Society) "given his [my] conduct and the state of his [my] mental health…" I have never been found to have a mental illness and my conduct towards Mr Avadis was always civil. Mr Avadis is only making this malicious slander because I have proved to the Law Society that he defrauded me (as his client) into believing he was obtaining PR for me when he was not doing so. Value: expect to recover more than £15000. I wish my claim to issue in the High Court because I feel (a) the nature of Mr Avadis' offences to be of a nature so severe as to warrant a major fiscal penalty and (b) to expose his wrong doing to prevent more of the same.'
'In a copy of a letter addressed to the respondent, Mrs Joanna Chambers (dated 7 August 2002), Mr Avadis states that he has: "…now submitted the Application for Public Funding in this case so the certificate should be granted and proceedings issued for contact and Parental Responsibility"… however as can be seen on pages [blank] this is a false, indeed…. even a perjurious statement in a material particular, as on the Form C2 (the court document needed to obtain PR) there is no mention of parental responsibility on that application form. Ms Maskell of the Office for the Supervision of Solicitors upheld my complaint that Mr Avadis had claimed to be seeking PR on my behalf (and was in fact being paid by the Legal Services Commission to do so) when he was clearly not doing so.'
'Mr Gray says that when he first instructed you in July 2001 he advised you that he wished to make an application for Parental Responsibility and contact with his children. In your letter of 11 July 2001 to Mrs Chambers, you state that Mr Gray "wishes to have contact with his son" and that he "also requires Parental Responsibility so that he can have a say in the important decisions in the boys live". It therefore seems that you accepted Mr Gray's instructions to apply for both contact and parental responsibility. Would you agree? On the form C2 sealed by the court on 8 October 2001 paragraph 2 of the form lists "the order (s) or direction(s) you are applying for". With reference to both children, the order applied for is stated to be "defined contact order". At paragraph 4 of the same form, reasons for applying for contact are stated. There is no mention of parental responsibility at that section or otherwise on the form. In your telephone conversation with Ms Maskell of 22 February 2002 you confirmed that the Public Funding Certificate (PFC) was granted for parental responsibility and contact. Please forward a copy of the PFC to me. In the same telephone conversation you advised that it is often the case that Parental Responsibility is not applied for on the form C2 but that this is requested at "the Hearing". Please confirm the dates of any Court Hearings in this matter and provide copy attendance notes for each. Please specifically confirm whether an application was made for Parental Responsibility at any such hearing. If it was, please provide evidence by way of an attendance note/court order. If Parental Responsibility was not applied for at any Hearing, please let me have your comments as to why this was the case."
'It is clear that Mr Grays initial instructions were to apply for contact and PR and that the C2 only contained an Application Form contact. I do not have the file at present but recall that Mr Gray was extremely particular in all matters. I cannot recall whether he and I agreed that we would not include PR in the Court Application but I do recall that he made no comment about the same at the first hearing. As I say, I do not have the file so I cannot send you a copy of the PFC but it was, I believe for Contact and PR. The only court hearing that I attended for Mr Gray was at the High Court on 21 October 2001 when the case was transferred, I believe to Portsmouth. This was a conciliation hearing. I enclose my attendance notes. It was extremely difficult to take Mr Gray's instructions and I felt extremely concerned by his behaviour towards me on a number of occasions. The hearing to which the note refers was memorable because the Respondent who was pregnant was extremely frightened of Mr Gray. Not long after Mr Gray was sectioned and then escaped. I have to say in all honestly I found, and indeed find him, quite frightening. Despite this I wanted to try to help him as I do all clients. He clearly suffered from mental illness – I do not know whether he still does. I believe that he had a genuine desire to see his children and I wanted to help him to achieve this. As a consequence of his conduct towards me I insisted that Mr Gray find new solicitors…'
'It has to be borne in mind that (a) I refused to act for Mr Gray at a very early stage after just one directions appointment because of his behaviour. There was nothing at all precluding him from applying for PR either himself or through his next solicitors. He suffered no prejudice whatsoever. (b) I cannot comment upon what Mr Gray says unless I have sight of my file. He has been asked to provide the same and has failed to do so. As it ultimately proved, Mr Gray's prospects of every obtaining PR, given his conduct and the state of his mental health, were not good. It may be that it was for this reason that I did not formally apply. I cannot however say, unless I see the complete file with all my attendance notes. The contents on those attendance notes may in turn explain Mr Gray's protracted refusal to release the file.'
i. a letter from the defendant to Mrs Chambers dated 7 August 2001 (a copy of which, the claimant told me, had been sent to him) reads as follows "I have now submitted the Application for Public Funding in this case so the certificate should be granted and proceedings issued for contact and Parental Responsibility this month…"
ii. a letter dated 29 November 2001 addressed to the claimant, in which the defendant wrote, "…I feel that I should not call them [CAFCASS] to chase up your appointment because you do not want me to continue to act for you".
iii. a letter dated 21 November 2001 from the claimant to the defendant, in which he sets out a number of complaints. The letter includes 'what is obviously the case, is that you yourself wish no longer to have me as a client. My reasons for stating this were made abundantly clear yesterday, when – after a month since a High Court ruling that I should have my case investigated by a Family Court Reporter – I asked how long in your experience I might be expected to wait until I received at least a date for this investigation, and you replied by saying: "How long is a piece of string?" Further when I asked that should weeks become months and I still had not received even a date of the FCR investigation, would you pursue the matter through the courts? You replied: "no" And went on to state that you would be quite happy to allow indefinite time to elapse, even years, before I was given a FCR date, and you still would not act on my behalf, despite the obvious suffering such a situation would cause… Of course I shall be seeking another lawyer immediately, and I shall, needless to say, be complaining to the OSS about your conduct forthwith'.
THE OSS AND THE LAW SOCIETY
INADEQUATE PROFESSIONAL SERVICES
Circumstances in which Council's powers may be exercised
1.--(1) The Council may take any of the steps mentioned in paragraph 2 ("the steps") with respect to a solicitor where it appears to them that the professional services provided by him in connection with any matter in which he or his firm have been instructed by a client have, in any respect, not been of the quality which it is reasonable to expect of him as a solicitor.
(2) The Council shall not take any of the steps unless they are satisfied that in all the circumstances of the case it is appropriate to do so.
(3) In determining in any case whether it is appropriate to take any of the steps, the Council may--(a) have regard to the existence of any remedy which it is reasonable to expect to be available to the client in civil proceedings; and(b) where proceedings seeking any such remedy have not been begun by him, have regard to whether it is reasonable to expect him to begin them.
Directions which may be given
2.--(1) The steps are--(a) determining that the costs to which the solicitor is entitled in respect of his services ("the costs") are to be limited to such amount as may be specified in the determination and directing him to comply, or to secure compliance, with such one or more of the permitted requirements as appear to the Council to be necessary in order for effect to be given to their determination;(b) directing him to secure the rectification, at his expense or at that of his firm, of any such error, omission or other deficiency arising in connection with the matter in question as they may specify;(c) directing him to pay such compensation to the client as the Council sees fit to specify in the direction;(d) directing him to take, at his expense or at that of his firm, such other action in the interests of the client as they may specify.
(2) The "permitted requirements" are--(a) that the whole or part of any amount already paid by or on behalf of the client in respect of the costs be refunded;(b) that the whole or part of the costs be remitted;(c) that the right to recover the costs be waived, whether wholly or to any specified extent.
(3) The power of the Council to take any such steps is not confined to cases where the client may have a cause of action against the solicitor for negligence.
3.--(1) The amount specified in a direction by virtue of paragraph 2(1)(c) shall not exceed £5,000.(2) The Lord Chancellor may by order made by statutory instrument amend sub-paragraph (1) by substituting for the sum of £1,000 such other sum as he considers appropriate.(3) Before making any such order the Lord Chancellor shall consult the Law Society.(4) Any statutory instrument made under this paragraph shall be subject to annulment in pursuance of a resolution of either House of Parliament.
Taxation of costs
4.--(1) Where the Council have given a direction under paragraph 2(1)(a), then--(a) for the purposes of any taxation of a bill covering the costs, the amount charged by the bill in respect of them shall be deemed to be limited to the amount specified in the determination; and(b) where a bill covering the costs has not been taxed, the client shall, for the purposes of their recovery (by whatever means and notwithstanding any statutory provision or agreement) be deemed to be liable to pay in respect of them only the amount specified in the determination.
(2) Where a bill covering the costs has been taxed, the direction shall, so far as it relates to the costs, cease to have effect.
Failure to comply with direction
5.--(1) If a solicitor fails to comply with a direction given under this Schedule, any person may make a complaint in respect of that failure to the Tribunal; but no other proceedings whatever shall be brought in respect of it.
(2) On the hearing of such a complaint the Tribunal may, if it thinks fit (and whether or not it makes any order under section 47(2)), direct that the direction be treated, for the purpose of enforcement, as if it were contained in an order made by the High Court.
6.--(1) The Council may, by regulations made with the concurrence of the Lord Chancellor and the Master of the Rolls, make provision for the payment, by any client with respect to whom the Council are asked to consider whether to take any of the steps, of such fee as may be prescribed.
(2) The regulations may provide for the exemption of such classes of client as may be prescribed.
(3) Where a client pays the prescribed fee it shall be repaid to him if the Council take any of the steps in the matter with respect to which the fee was paid.
(4) In this paragraph "prescribed" means prescribed by the regulations.
7. Where the Council take any of the steps with respect to a solicitor they may also direct him to pay to the Council--(a) the amount of the fee payable by the Council to the client under paragraph 6(3); and(b) an amount which is calculated by the Council as the cost to them of dealing with the complaint, or which in their opinion represents a reasonable contribution towards that cost.
Duty of Tribunal
8. Where the Tribunal--(a) is considering, or has considered, an application or complaint with respect to a solicitor; and(b) is of the opinion that the Council should consider whether to take any of the steps with respect to that solicitor, it shall inform the Council.
9. The Council's powers under this Schedule are exercisable in relation to a person even though his name has been removed from, or struck off, the roll and references to a solicitor in this Schedule, so far as they relate to the exercise of those powers shall be construed accordingly.'
i. The First Premise: the publications were statements made during inquiries made in connection with potential proceedings before the SDT (it being settled law that the proceedings of the SDT attract absolute privilege: Addis v Crocker  1 QB 11).
ii. The Second Premise: the OSS is itself a tribunal exercising functions equivalent to a court of justice and the letters were published to it as part of its proceedings.
iii. The Third Premise: as in the Second Premise, save that the letters were published during enquiries made in connection with potential proceedings before it.
'That absolute privilege attaches to words spoken or written in the course of giving evidence in proceedings in a court of justice is a rule of law, based on public policy, that has been established since earliest times. That the like privilege extends to evidence given before tribunals which, although not courts of justice, nevertheless act in a manner similar to that in which courts of justice act, was established more than a hundred years ago by the decision of this House in Dawkins v. Lord Rokeby (1875) L.R. 7 H.L. 744, where the unanimous answer of the judges to the question asked them by the House was adopted and the ratio decidendi of the judgment of the Court of Exchequer Chamber (1873) L.R. 8 Q.B. 255 was approved.
The kind of tribunal in which the evidence of witnesses is entitled to to absolute privilege was described by Lord Atkin in O'Connor v. Waldron  AC 76, 81, as a tribunal which "has similar attributes to a court of justice or acts in a manner similar to that in which such courts act." That the "or" in this phrase is not intended to be disjunctive is apparent from the fact that Lord Atkin was confirming the accuracy of the law as it had been stated by Lord Esher M.R. in Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson  1 Q.B. 431, 442. Lord Esher, having spoken of "an authorised inquiry which, though not before a court of justice, is before a tribunal which has similar attributes", went on to explain that what he meant by similar attributes was "acting ... in a manner as nearly as possible similar to to that in which a court of justice acts in respect of an inquiry before it."…
No single touchstone emerges from the cases; but this is not surprising for the rule of law is one which involves the balancing of conflicting public policies, one general: that the law should provide a remedy to the citizen whose good name and reputation is traduced by malicious falsehoods uttered by another; the other particular: that witnesses before tribunals recognised by law should, in the words of the answer of the judges in Dawkins v. Lord Rokeby, L.R. 7 H.L. 744, 753 "give their testimony free from any fear of being harassed by an action on an allegation, whether true or false, that they acted from malice."
So, to decide whether a tribunal acts in a manner similar to courts of justice and thus is of such a kind as will attract absolute, as distinct from qualified, privilege for witnesses when they give testimony before it, one must consider first, under what authority the tribunal acts, secondly the nature of the question into which it is its duty to inquire; thirdly the procedure adopted by it in carrying out the inquiry; and fourthly the legal consequences of the conclusion reached by the tribunal as a result of the inquiry.'
'The reasons why immunity is traditionally (and for this purpose I accept the tradition) conferred upon witnesses in respect of evidence given in court, are in order that they may give their evidence fearlessly and to avoid multiplicity of actions in which the value or truth of their evidence would be tried over again. Moreover, the trial process contains in itself, in the subjection to cross-examination and confrontation with other evidence, some safeguard against careless, malicious or untruthful evidence…. Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of public interest'.
'(1) Where the Council are satisfied that it is necessary to do so for the purposes of investigating… (c) whether any professional services provided by a solicitor were not of the quality which it is reasonable to expect of him as a solicitor... the Society may give notice to the solicitor … requiring the production or delivery to any person appointed by the Society, … of all relevant documents in the possession of the solicitor…'