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England and Wales High Court (Queen's Bench Division) Decisions
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Cite as:  EWHC 980 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| NIGEL BARRY ADAMS
- and –
|(1) THE LAW SOCIETY OF ENGLAND AND WALES
(2) ALISON CRAWLEY
(3) DAVID MIDDLETON
(4) MICHAEL CALVERT
(5) ROBIN PENSON
(6) CAROLINE GILES
(7) DEREK JOHNSTON
(9) NICHOLAS HEELAM
(9) SUSAN FAULKNER
(10) CAROL FEATHERSTONE
(11) ANDREW BAIN
James McClelland (instructed by Field Fisher Waterhouse LLP) for the Defendants
Hearing dates: 20 and 21 March 2012
Crown Copyright ©
See: Final ruling and Interim ruling
Mr Justice Foskett :
Grounds for intervention and the effects of an intervention
"1 (1) Subject to sub–paragraph (2), the powers conferred by Part II of this Schedule shall be exercisable where—E+W
(a) the Society has reason to suspect dishonesty on the part of -
(i) a solicitor, …
in connection with that solicitor's practice …
(c) the Society is satisfied that a solicitor has failed to comply with rules made by virtue of section … 32 …"
"The legal department of the SRA, which manages interventions, appoints an intervening agent, a solicitor who is a member of the SRA's intervention Panel practising in the relevant area, who will take direct responsibility for (in particular) client files. Provisional arrangements may be made in advance of the intervention resolution when it can reasonably be expected to occur. Notice of the intervention will not be given to the solicitor (even if the Panel has resolved on the intervention some days before) until the agents are ready to act and the solicitor's bank has received notice. The solicitor will therefore not know of the intervention until after his or her bank accounts are frozen. The first that the solicitor will typically hear of the decision will be by a cryptic telephone call from the SRA requesting him to stand by his fax machine to receive an important communication. This is likely to be in the late afternoon when the agents and representative of the SRA are due to arrive at the firm's offices the following morning.
The intervening agents attend at the solicitor's address and take possession of the practice documents which in most cases are removed without delay. Matters which are urgent and require prompt action are identified and (hopefully, assuming the solicitor's cooperation) discussed. Practice moneys are transferred to a bank account under the control of the intervening agents. The intervening agents attempt to bring the practice's accounting records into proper order.
Clients will receive a standard letter informing them that the SRA has been obliged to exercise its statutory powers and inviting them to nominate successor solicitors or, if appropriate, to accept the delivery of their papers themselves …."
"The description of an intervention as striking a mortal blow to the practice [this being a reference to the case of Giles v Law Society  8 Admin LR 105, CA] is, if anything, an understatement. Quite apart from the automatic suspension of the practising certificate, the solicitor loses control of the practice's bank accounts and the practice's documentation. It instantly becomes impossible to service any bank overdraft. Unless the intervention is rapidly reversed by the court, the solicitor's practice is lost without any compensation, and the solicitor faces almost inevitable financial ruin."
The grounds relied on in this case
Challenging an intervention
"(3) The Society shall serve on the solicitor or his firm and on any other person having possession of sums of money to which this paragraph applies a certified copy of the Council's resolution and a notice prohibiting the payment out of any such sums of money.
(4) Within 8 days of the service of a notice under sub–paragraph (3), the person on whom it was served, on giving not less than 48 hours' notice in writing to the Society and (if the notice gives the name of the solicitor instructed by the Society) to that solicitor, may apply to the High Court for an order directing the Society to withdraw the notice."
"First it must decide whether the grounds … are made out; in this case, primarily, whether there are grounds for suspecting dishonesty. Secondly, if the court is so satisfied, then it must consider whether in the light of all the evidence before it the intervention should continue. In deciding the second question, the court must carry out a balancing exercise between the need in the public interest to protect the public from dishonest solicitors and the inevitably very serious consequences to the solicitor if the intervention continues."
"110. It is not in doubt that intervention in a solicitor's practice, without advance notice, is likely to have the most serious consequences for the solicitor. Parliament has provided the solicitor with a summary process by which he (or she) can bring the matter before the court; but has imposed short time limits within which that process must be commenced. In Holder v Law Society … this Court considered – and rejected – an argument that the procedure for which Parliament had made provision was incompatible with the solicitor's Convention rights. It rejected that argument (inter alia) on the basis that the court's power to consider whether a fair balance has been struck between the demands of the general interest of the community and the protection of the individual's fundamental rights met the requirements of article 1 of the First Protocol. But it is clear that, unless the matter can be determined by the court within a short time of the intervention, the solicitor is likely to be denied an effective remedy. That is because the consequences of intervention – if the intervention continues for more than a short time – are likely to be irreversible. The solicitor's clients will have to take their affairs elsewhere; the staff will have found other employment; and the practice will be destroyed in any event.
111. There is an obvious tension between the need to have an application to the court determined speedily and the need for the court to give full and fair consideration to the task which it has been set under the 1974 Act and, now, the Human Rights Act 1998 …."
"Solicitors who are the subject of interventions have challenged the exercise of this powerful and terminally damaging regulatory weapon without any requirement for notice, on the grounds that it is in breach of the principles of natural justice and that it is incompatible with the rights protected by the Human Rights Act 1998 (HRA 1998). All such challenges have failed. The natural justice arguments were rejected in Giles v Law Society, and the HRA 1998 arguments failed in Holder v Law Society. In the latter case, the Court of Appeal held that the statutory regime as a whole did not offend HRA 1998, although it remained open to a solicitor to assert that an intervention in a particular case breached the rights protected by the European Convention."
The claims Mr Adams wishes to bring
"17. The misfeasance claim … is concerned with the concealment by the defendants of numerous facts and documents which would have contradicted their false assertions or implications relating to the Claimant, and the making of numerous false statements about him. The claim is based on the pattern of the defendants' conduct towards the Claimant. Some of the individual matters of which complaint is made may not appear to evidence misfeasance, taken in isolation. Taken together, however, and with other relevant matters … those matters demonstrate that the individual defendants and, through them, the 1st defendant, have exercised their powers of public officers in a manner specifically intended to injure the Claimant, or with knowledge that they lacked the power to act as they did and knew that their actions would probably injure the Claimant. The actions of the defendants have caused loss to the Claimant … the losses suffered by the Claimant are set out in the accompanying Schedule of Damage.
18. [The FIR] was wholly inaccurate and misleading. The main examples are set out below, but in total the Report and office note contain upwards of 50 misrepresentations or false statements, with similar numbers each of failures to disclose relevant laudable conduct by the Claimant and failures to disclose, or misleadingly quoted, documents; as well as hundreds of failures to disclose relevant information. Taken together, these inaccuracies, misrepresentations and omissions are incapable of explanation other than as conduct specifically intended to injure the Claimant or, at least, as conduct which was unlawful in that it consisted in flagrant misrepresentations as to the Claimant's conduct and character, which misrepresentations must have been made at least with subjective recklessness as to their untruth.
19. The malicious nature of the misrepresentations made, and the impression of the Claimant's character provided thereby, is underlined by the failure … to include in [the FIR] any evidence of the Claimant's good character and praiseworthy conduct, which character and conduct was evidenced to the defendants from the evidence before them, including information specifically drawn to their attention by the Claimant and which he was assured by [Mr Johnston] would be put before the relevant decision makers. The evidence included many examples of the Claimant disadvantaging himself in terms of charging, including in some cases exceptionally long periods of credit to the benefit of his clients; examples of the Claimant's active and successful efforts to combat fraud and other criminal behaviour; and evidence of the high esteem within which the Claimant was held by members of the judiciary and other senior members of the legal profession.
20. The [FIR] and the accompanying office note were designed to represent the Claimant as dishonest, unethical and grasping whereas, to the knowledge of those involved in drawing up and signing off the [FIR] and office note, this picture of the Claimant was false."
"Misfeasance in public office is an intentional tort of considerable gravity. It is a tort of obloquy…."
The approach to summary judgment
"It is certainly the case that under both [CPR 13.3(1) and CPR 24.2], where there are significant differences between the parties so far as factual issues are concerned, the court is in no position to conduct a mini-trial: see per Lord Woolf MR in Swain v Hillman  1 All ER 91 at 95 in relation to CPR 24. However, that does not mean that the court has to accept without analysis everything said by a party in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporary documents. If so, issues which are dependent upon those factual assertions may be susceptible of disposal at an early stage so as to save the cost and delay of trying an issue the outcome of which is inevitable: see … Three Rivers DC v Bank of England (No.3) … per Lord Hope of Craighead at paragraph ."
The error relating to this sum was rectified before the investigation took place. However, it is referred to in a qualified accountant's report for the 6-month period ending on 31 January 2004 and merely because it was rectified before the investigation did not, of course, render it irrelevant for the purposes of the investigation.
The FIR noted that Mr Adams had, at the request of a company for which he was acting in a conveyancing transaction, made payments totalling £95,000 to four creditors of the company out of the proceeds of sale of a property. Erroneously, the four cheques had been drawn on the firm's office account. A few days after this occurred, Mr Adams instructed the bank by a faxed letter to transfer £95,000 from the firm's client account to the office account which the bank indeed did. However, 16 days later the bank transferred another £95,000 from the client account to the office account, apparently in response to the original of the faxed letter that Mr Adams had sent on to the bank. This further transfer occurred on or about 29 October 2003. Nothing was in fact done to rectify this situation until Mr Adams wrote to the bank on 13 January 2004 advising them of the situation. What emerged during the investigation was that the firm's book-keeper had noted the position on 19 December and had sent an urgent fax to Mr Adams alerting him to the problem, namely, that there was "a shortfall on [the] client's account of £95,000" and asking him to transfer the money "back as a matter of urgency". The report noted that whilst his obligation under the Rules was to remedy any breach "promptly on discovery", it took Mr Adams three weeks to remedy the shortfall. The report noted that the letter sent by Mr Adams to the bank on 13 January, alerting the bank to the issue, commenced with the words "it has now come to my attention that the transfer was erroneously made by the bank twice…" and concluded with the words "… if I had had proper notice of the true position … I could have taken action some weeks or months ago to transfer or otherwise bring forward the payment of fees". However, the report also suggested that it was "inconceivable that Mr Adams was unaware that there was a problem with his office account prior to 19 December" because between 29 October 2003 and 15 January 2004 (when the £95,000 was paid back) a total of just over £26,000 was withdrawn from the office account (by means of cash withdrawals, cheques signed by Mr Adams and a good number of direct debits and standing orders) when (a) nothing had been paid in to that account in the meantime and (b) the overdraft facility on that account was £10,000 and the account was overdrawn to the extent of £3,900 immediately before the second transfer of £95,000. The investigation report also noted that the correcting transfer of £95,000 that took place on 15 January 2004 was dated 31 October 2003 in the firm's ledger account, thus giving the appearance that the shortage existed for only 2 days whereas in reality it was in existence for 78 days.
As I have indicated, the above matter concerning the £95,000 was finally rectified on 15 January 2004 when the bank effected the necessary re-transfer of the £95,000 to the client account and at the same time granted Mr Adams a temporary increase of his overdraft facility on his office account from £10,000 to £35,000 until 13 February 2004 pending the receipt of further funds. The report notes that on 5 February, Mr Adams paid £4,500 from the client account to an agency for the hire of temporary secretarial staff, a sum that plainly ought to have been paid from the office account. The report reveals that had he paid the £4,500 from his office account on 5 February he would have exceeded his overdraft limit from 13 February onwards. The correcting transfer back from the office account to the client account of the £4,500 did not take place until 22 March (the day before the Investigation Team arrived), but the entries in the records dealing with it were dated 5 February.
The FIR notes the need for a solicitor who "properly requires payment of … fees from money held … in a client account must first give or send a bill of costs … to the client …." On 13 February (when the overdraft facility on the office account reduced to £10,000) Mr Adams transferred a total of £13,059.15 from the client account to the office account in respect of fees that he said were owing by four clients, but before the bills were sent to those clients. The precise dates upon which the bills were sent to the clients is a little unclear from the report, but in some cases they were not sent for several weeks.
The Case Note prepared by Mrs Giles
"6.1 That Mr Adams used client money to pay the fees/salaries of temporary secretarial staff at a time when he would not have been able to make the necessary payments from office account because he would have exceeded the firm's overdraft facility in doing so.
6.2 That Mr Adams transferred monies purportedly in respect of costs without delivering a bill or other written notification of costs incurred to the clients concerned. The Panel will note that it appears that the resultant shortage of £13,059.15 has not been rectified because there is no indication that bills have now been delivered.
6.3 As indicated previously in this Report, a cash shortage of £95,000.00 arose on 29 October 2003 following a duplicated bank transfer from the firm's client to the firm's office account. Mr Adams was aware of the shortage at the latest on 19 December 2003 when he was contacted by the firm's bookkeeper. On 13 January 2004 Mr Adams wrote to his bank indicating that, having been unaware of the error, he had continued to draw on his office account with the result that he was unable at that time to rectify the shortage. The Panel will note that immediately prior to the second erroneous transfer, the practice's overdraft facility was only £10,000.00 and office account was £3,905.17 overdrawn (AP10). In the circumstances, the Panel may consider that in making withdrawals and paying direct debits and standing orders totalling £26,172.63, and in excess of his overdraft limit, when he must have been aware that he had not made any payments/transfers into office account, Mr Adams acted with conscious impropriety and/or closed his eyes and ears lest he learn something he would rather not know and then proceeded regardless. The Panel may wish to note that the caseworker understands that a total of £6,257.81 of the withdrawals from office account were made after 19 December 2003."
"6.6 The Panel will note that Mr Adams has retained in client bank account significant sums in relation to matters in respect of which he has carried out no substantive work for some time …. The Panel may wish to ask the question – why has Mr Adams failed to account to clients for those sums? Bearing in mind the instances detailed in the FI Report of Mr Adams using client money for office and personal expenses, the Panel may wish to consider whether this money is at risk. In this connection, the Panel might also wish to bear in mind the financial pressures currently being faced by Mr Adams in light of his Individual Voluntary Arrangement … and the monies required to be paid into court as a result of the summary judgment referred to at paragraph 93 of the Report ….
6.7 The Panel will also wish to consider whether Mr Adams acted with 'conscious impropriety' in submitting to the court and another firm of solicitors that he wished not to attend a hearing in order to save the public purse at a time when he was aware that the Legal Aid Board had notified him that they were treating the application for public funding as abandoned.
6.8 The Panel will note the references in the FI Report to Mr Adams' non-compliance with certain of the Notices issued to him under section 44B of the Solicitors' Act 1974 (as amended). The Panel will note that the files which have not been produced include that of [SH] (although this has now been dealt with by order of the court) and a number of those on which Mr Adams retains substantial balances in client account. The Panel may wish to consider whether Mr Adams has refused to comply because he is concerned that those files may disclose further evidence of impropriety on his part. The Panel may wish to consider whether Mr Adams is 'closing his eyes and ears' to his obligations to the Society as a result."
1. The Panel is advised that neither the FI Report nor this office Report have been disclosed to Mr Adams for his explanation in advance of the matter being considered by the Panel. The reasons for this include the scale of the apparent wrongdoing and that it was considered by the Society that clients' funds and documents may be at risk if notification of the matter being adjudicated was provided.
2. If the Panel considers that Mr Adams should be given an opportunity to comment on the issues detailed in the FI Report and this office Report and provide an explanation of his conduct then the Panel is, of course, free to so direct and stand over consideration of the matter."
"11. I respectfully submit that what should inform and underpin the Court's decision in this case, both at the forthcoming hearing of my and the Defendant's applications, and throughout the proceedings, up to and including trial, is the simple justice of the matter. From a factual viewpoint it may be hard for someone coming to this case afresh, and with little time to assimilate and weigh a large amount of factual information, to decide where the truth lies.
12. This is due to the factual density of the allegations originally made against me in the documents inducing the intervention, principally the FIU Report (the 'Report') and Case Note. These may seem fairly simple and the conclusions drawn or implied equally straightforward. However, factually, each of them was often the tip of the iceberg in the form of e.g. a very thick file or far more complex background. With a very large number of crucial facts and documents suppressed by the Defendants.
13. The number of my allegations in the draft Particulars of Claim is a direct consequence of the sheer number of wrongful acts and omissions by the Defendants ….
14. My counter allegations formalised in my present Misfeasance Claim, have been made repeatedly over the years, initially within a few minutes of my being informed over the telephone by Mr Bain of the First Defendant, that I had been intervened in. Belatedly, the Defendants have purported to address my allegations in the schedule of responses comprising the Schedule to Mr Gibson's Statement. Superficially, to someone who knows little or nothing of the facts and the reality, that Schedule may appear to deal with my allegations and show they are misconceived. My responses are set out in the Schedule to my 6th Statement and also with respect to two of the accounts breaches in my 7th Statement. I believe it is clear from those responses the Schedule does not answer my allegations, or at least most of them nor many of the most important."
"At the beginning of February, the Law Society took it upon itself to put in further witness statements which, in effect, replied to the draft second witness statement of Mr Adams. Mr Adams, true to form, in the days shortly before the hearing came on, produced a fourth draft witness statement, which in its first incarnation ran to 226 pages and was extended to over 300 pages, and a fifth witness statement which said that his fourth witness statement was more or less correct."
The £95,000 issue
"(c) The delay in the transfer of funds back to the client account until 13 January 2004 resulted from:
(i) the fact that there were only two banking days between 19 December 2003 and Christmas,
(ii) the Claimant's need to double-check the extraordinary error, which he did over the weekend on 20-21 December;
(iii) the time and disruption unexpectedly caused to the Claimant's work and practice by the fact that the Claimant's home/workplace was in disarray as a result of building works which had become delayed and complicated and which left the Claimant at times without running water, toilet facilities, central heating, or cooking facilities and forced the Claimant to devote urgently much of his time before Christmas to ensure these difficulties did not persist over the Christmas break thus ruining his family's Christmas as well as continue to disrupt the running of his firm;
(iv) the Claimant's failure, despite attempts between Christmas and New Year, to contact the relevant bank manager who was on holiday for part or all of this period;
(v) the Claimant's illness starting during the Christmas break, which persisted until the end of the first week in January (c. 9 January 2004)
All with the effect that the Claimant did not have the opportunity to complete instructions to the bank to transfer the sums, which required personal contact between the Claimant and the bank so that he could make arrangements for the temporary provision to him of a larger than normal overdraft facility, until Tuesday 13 January 2004."
"…The clients' account … has a shortfall and please transfer back as a matter of urgency…. please confirm that this is being dealt with…. it is unfortunate that this has only come to light today but I cannot pick errors up until I am sent the accounts data to process."
"bank whose fault it is to make available temporarily a sufficiently large o/draft facility to clear client debit completely….I can transfer the whole of the credit on office to client plus part of office a/c overdraft facility. However, do not have sufficient facility or available costs to transfer whole amount….ps. do have sufficient costs but no time to calculate & do bills."
The £4,500 issue
"In the absence of secretarial support [Mr Adams] had faxed to the bank a request for urgent payment of monies (by CHAPS) owed to an employment agency. Because of his rudimentary typing skills and the urgency of the matter [Mr Adams] had begun to amend a document using a template for CHAPS payments (which was generally used for conveyancing payments from the client account), intending to insert the office bank account details, but overlooked doing this by reason of an oversight during a period of great work pressure and no administrative support."
"The Report, by setting out how payment from the office account of the £4,500 on the relevant date would have put the account in excess of the Claimant's overdraft limit some eight days after that transfer, implies that the payment from the client account was deliberate. This implication is wholly without foundation, not least in view of the Claimant's administrative disorganisation, which was characterised for the most part by his delays of months, to his detriment, in billing clients for work done and subsequently transferring monies from client to office account, which disorganisation was known to those responsible for drawing up the Report through, in particular, the 7th Defendant, as a result of the Inspection. At the time of the error in payment of the £4,500 the Claimant not only had more than sufficient moneys on office account (from which the payment was intended to come) to cover the payment, as the Defendants acknowledge, but at the later time when the Defendants allege the Claimant would have had insufficient moneys, he had substantial monies in his client account which either had been billed, but not yet transferred, though they could properly have been so transferred, or which could (on billing and notification to the clients) properly have been transferred to his office account. Further, the Claimant had regularly been granted extensions to his overdraft facilities either formally or informally. Nor does the Report record that the Claimant remedied the incorrect payment promptly on discovering it (on the third working day after his bookkeeper notified him, this notwithstanding the huge additional volume of work generated by the Inspection of which he was notified on the same day as he was notified of the mistaken payment). The partial account of the £4,500 payment made in error from the Claimant's client account, and of the Claimant's financial situation at that time, gives a wholly misleading impression as to the significance of that payment. This example was then relied upon in the 6th Defendant's Case Note in the Professional Regulation Adjudication Panel to indicate suspected dishonesty on the part of the Claimant.
The 7th Defendant would, further, have been aware from his familiarity with the Claimant's accounts that the Claimant's bank did not charge him unauthorised borrowing fees, the threat of such fees being a suggested reason for the payment of £4,500 being alleged to be deliberate. The partiality of the Defendant's account, taken with the many others in the Report, is evidence that those responsible for drawing up the Record, and through them the First Defendant, had determined to treat the Claimant as dishonest and to secure an intervention into his affairs regardless of the true position."
Transfers from client account before bills submitted
"The allegations … of transfers of costs by [Mr Adams] prior to the delivery of bills … were never put to [him] who was denied the opportunity to respond to them. [He] denies these breaches in so far as it is alleged that some bills were not delivered to clients at all. His response to these allegations, not having been made to him prior to the Report, is hampered by the fact that the Defendants have lost at least one of the files or they are otherwise not available to [Mr Adams]. To the extent that some bills were delivered a few days late, this was the result of [his] lack of secretarial support, and typically took place after [he] had (because of administrative difficulties) delayed in claiming fees properly owing to him for periods of months. Any such delays as may have occurred cannot reasonably (or at all) be regarded as evidence of dishonesty on [his] part".
Client care letters
Charges for disbursements
The dispute with 'SH'
"In my view it would be improper for me to part with possession of property which the court may be about to pronounce on. For the Law Society to require me to do so is grossly improper at the very least."
Significant client balances retained
"The Panel may wish to ask the question – why has Mr Adams failed to account to clients for those sums? Bearing in mind the instances detailed in the [FIR] of Mr Adams using client money for office and personal expenses, the Panel may wish to consider whether this money is at risk. In this connection, the Panel might also wish to bear in mind the financial pressures faced by Mr Adams in the light of his Individual Voluntary Arrangements…and the moneys required it to be paid into court as a result of the summary judgment [in the proceedings with SH]…."
"(12) The reference made in para. 102 to there being client accounts with significant balances did not appear at the time of the Report itself to disclose any allegation of wrongdoing, but read with the Office Note disclosed to the Claimant on 3 September 2004 contains the implication that the Claimant intended to steal these balances. In the absence of any evidence that the Claimant was acting improperly with respect to long-standing balances, such implication was entirely unwarranted and perverse. The non-disclosure of this allegation to the Claimant even at the time of the intervention itself had the effect of hampering his ability to defend himself against this entirely unwarranted allegation. Further, the statement made at para. 102 that the Claimant had "eventually" provided only 14 of 15 client files sought, is misleading in that it suggests, in the context of the Report taken as a whole, culpable failure on the part of the Claimant with regards to disclosure. In fact, these files were demanded on the second day of the Inspection of which the Claimant had been given only three days' notice, his request for deferral to allow him a reasonable period of time to prepare having been rejected by the Fourth Defendant who had assured the Claimant by telephone on 17 or 18 March that the Claimant would not be expected to produce everything in time for the Inspection and could produce materials as and when he could after the first day thereof. To the Claimant's recollection the fourteen files were in fact produced on the same day, 24 March 2004, or on the following day 25 March or on 30 March (the Defendants having suspended the Inspection on 25 March and reinstated it on 27 March, a Saturday, attending again on Tuesday 30 March)."
Failure to mention positive aspects
Conclusion on the misfeasance case
The procedural history
"To issue, but this claim form must not be served pending order".
- The Claimant has repeatedly obtained extensions of time in which to comply with [the order of 11 January 2011].
- The Claimant's witness-statement of 14/04/11 gives no remotely adequate reason for a further extension.
- Moreover, that witness-statement makes it even more apparent that the action is an attempt to re-litigate, if not a ruling by the Solicitors' Disciplinary Tribunal, an intervention by the First defendant.
- So far as the action is based on the Human Rights Act 1998, the action is long out of time, and no ground is provided for considering any extension to the time-limit.
- The action, which is after all brought by a former solicitor, accordingly represents the plainest possible infringement of Rule 3.4(2) of the Civil Procedure Rules.
Was Master Eyre right to prevent service of the Claim Form?
Should the claims be struck out as an abuse of process?
"44. … Mr Adams says that the Law Society has been fraudulent and deceitful in the way that it reported on him and in the manner in which it has pursued its opposition to his application. Those are serious charges which he wants to ventilate at a trial and he wishes to be able to prove; he says he has evidence that the Law Society deliberately falsified parts of its report or, at very best, omitted important evidence in his favour so as to give a false impression. Still less is that a reason for having a trial of this case.
45. 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."
Are the FIR and the Case Note covered by absolute privilege?
"In Darker v Chief Constable of West Midlands Police Lord Clyde … said that the principles governing the immunity of witnesses in connection with judicial proceedings "should be of general application regardless of the particular form of the action". The only exception to this principle of absolute immunity for participants in investigations or proceedings is the tort of malicious prosecution or malicious arrest. However the Claimant does not allege that the Defendants have committed this tort. I reject Mr Susman's submission that the immunity does not apply in the case of an action for misfeasance in public office. The single passage in Three Rivers DC v Bank of England (No.3) at 191E on which he relies does not, in my view, support his submission. Lord Steyn was not there dealing with immunity as such; he was discussing the ingredients of the tort of misfeasance in public office and looking at the state of mind of the Defendant …."
Bringing the claim against individuals
Pdf version of Final and Interim rulings
Mr Justice Foskett :
Final ruling on issues raised following the hand down of the judgment on 17 April 2012
The recusal issue
"The judge has looked briefly at your further submissions sent this morning before going into court.
He is happy to confirm that he had no role at all in the management of his chambers at the time: he was not a member of the chambers' management committee and played no role in the investigation of complaints. The matter does not require "further investigation" and, as far as he is concerned, the issue is closed.
He sees absolutely no reason to recuse himself from further involvement in this case simply because you have now drawn his attention to something of which he was previously wholly unaware. That you may have had a dispute with his former chambers will have no bearing at all upon the decisions he makes concerning the consequences of a judgment handed down 5 weeks ago.
He has noted the issues you have raised with Mr Gibson about one of the individual defendants. Neither that nor the matters you have raised in your most recent e-mail to me changes his direction given last week that you should submit your representations in response to the defendants' submissions by 4pm tomorrow.
He is unwilling that I should become involved in further e-mail correspondence. I will look forward to receiving your further representations by the time stipulated by the Judge."
The form of the order
Case "totally without merit"?
Permission to appeal
i) He says that I had not summarised his case on the "£95,000 issue" fairly. He suggests in that connection that I showed "a disturbing and unjust tendency to be looking for the tiniest things to impeach [his] good faith and honesty". I am happy to leave that for others to judge, but I think he misunderstands and himself misrepresents my approach. My approach was to see if there were reasons why the Defendants had "reason to suspect dishonesty". He suggests that I have done him a "huge injustice" by not giving him the opportunity to rebut certain matters which he characterises as "illusory" flaws in his case. Again, I am perfectly happy for others to judge whether that was so, but I do not recognise any aspect of my judgment that is to that effect. He suggests that I have been unfair in characterising his Counsel's pleading as "convoluted" in relation to one aspect. I wish to make it quite plain that I did no such thing: I said that the explanation (which must have come from Mr Adams) was "convoluted". The pleading was bound to be convoluted if it reflected accurately Mr Adams' account.
ii) He says that I misrepresented his submissions in some respects (for example, under the heading "Failing to deal with positive aspects"). He suggests I have adopted "an approach of extreme insouicance to reckless allegations that [he] was a thief". I do not think that any fair reading of my judgment could lead to that conclusion.
iii) I see that he suggests that I kept my cards "close to my chest" and that I should have been more interventionist. He will forgive me for observing that had I been more interventionist by asking pertinent questions I have little doubt that I would now be facing accusations of having made up my mind at too early a stage. He does acknowledge, I note, that I really did want him to deal with the £95,000 issue that seemed to me to be some way down his agenda.
iv) I see that he also suggests that I ignored the "clearly documented racism practiced by the" Law Society. I have to say that I have absolutely no recollection of that issue being raised at all during the proceedings. I am sure that Mr Adams will suggest that it shows that my memory is fallible. However, I have no recollection of it being raised at all, it would have been totally irrelevant (as Mr Adams himself acknowledges) and I am bound to say I simply do not understand why the issue has been raised.
Extension of time
Mr Justice Foskett
HQ10X03054 - Adams v Law Society and others
- That the claim form should be struck out.
16 May 2012
Note 1 Irrespective of any further order I might make in the context of this application, I will direct (because Mr Adams agrees I should do so) that the claims against D5 and D11 are discontinued with no order as to costs. [Back]
Note 1 Irrespective of any further order I might make in the context of this application, I will direct (because Mr Adams agrees I should do so) that the claims against D5 and D11 are discontinued with no order as to costs. [Back]