Adams v Law Society of England and Wales
| Jurisdiction | England & Wales |
| Judge | Lord Justice Vos,Mr Justice Arnold |
| Judgment Date | 13 December 2013 |
| Neutral Citation | [2013] EWCA Civ 1845 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2012/1589 |
| Date | 13 December 2013 |
[2013] EWCA Civ 1845
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CIVIL DIVISION
(MR JUSTICE FOSKETT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Vos
Mr Justice Arnold
Case No: A2/2012/1589
THE APPELLANT APPEARED IN PERSON AND REPRESENTED HIMSELF
MR J RAMSDEN (instructed by Field Fisher Waterhouse) appeared on behalf of the Respondent
This is an application by Mr Nigel Barry Adams ("Mr Adams") for permission to appeal from the decision of Foskett J in which he handed down his approved judgment as long ago as 17 April 2012. Mr Adams has sought to bring proceedings against the Law Society and ten named individuals (against two of whom the proceedings have now been discontinued). These individuals were all employees of the Law Society in September 2004, when the Law Society intervened in Mr Adams' practice as a solicitor under paragraph 1(1)(a) of Part 1 of Schedule 1 to the Solicitors Act 1974 ("the 1974 Act"), on the grounds that there was reason to suspect dishonesty on the part of Mr Adams. He had practised for some 20 years prior to 2004 as a sole practitioner under the name of Nigel Adams & Co.
Prior to today's hearing, Mr Adams sought to persuade the court to determine his application for disclosure against the Law Society, which he had issued last week, before dealing with the substantive application for permission to appeal. We declined to do so before the hearing, but said that he could address arguments to the point orally this morning. In the result, at the start of the hearing this morning, we told Mr Adams that:
"Within the timescales (mentioned), we will hear such further oral argument as you may wish to address in an attempt to persuade us to hear the disclosure application before dealing with the permission to appeal application. We should tell you however that we are of the preliminary view that no further disclosure is needed in order to deal fairly with the application for permission to appeal, because in order to obtain permission to appeal you need to persuade us that the judge was wrong to think that the Law Society was justified on the agreed or established facts to think there was reason to suspect your dishonesty. That does not depend on what incidentally may have been said in meetings or documents by the Law Society at the time. If there were objective reasons to suspect dishonesty, that must be an end of the matter."
Faced with that preliminary view, Mr Adams decided not to take up time addressing disclosure as a preliminary point. He did explain in his oral submissions why he submitted disclosure was so crucial and I will deal with his disclosure application in due course. Suffice it to say at this stage that I have not concluded that it was necessary to deal with the disclosure application in advance of the permission to appeal application.
Mr Adams is now, and has been since these matters arose in 2003 and 2004, unwell. I do not need to go into detail as to his medical problems, but I have taken them fully into account in preparing this judgment and in dealing with his applications.
The Law Society's intervention in Mr Adams' practice took place on 31 August 2004. On 8 September 2004, Mr Adams issued proceedings seeking the withdrawal of the intervention together with compensation for breaches of the European Convention on Human Rights and Fundamental Freedoms (the "ECHR"). Mr Adams did not pursue those proceedings timeously, but ultimately the Solicitors' Regulatory Authority (the "SRA") applied to strike them out, which HHJ Weeks QC did on 3 March 2006. Hooper LJ refused Mr Adams permission to appeal that decision on 19 December 2006.
It was not until 10 August 2010, more than three and a half years later and three weeks short of the six-year limitation period, that Mr Adams issued the Claim Form in these proceedings indicating that the Particulars of Claim were to follow. He claimed damages for misfeasance in public office, breach of his human rights and a declaration that the statutory power of intervention was incompatible with the Human Rights Act 1998.
Mr Adams had until 10 December 2010 under CPR Part 7.5 to serve his Claim Form but he was initially prevented from doing so because Master Eyre had endorsed the claim form: " To issue, but this claim form must not be served pending order". Mr Adams obtained a number of extensions of the four-month period for service of the Claim Form and eventually, on 11 January 2011, produced a 238-page draft Particulars of Claim which Master Eyre described as " gigantically overlong", before directing a shorter document to be filed and served by 8 February 2011.
On 14 April 2011, Master Eyre heard a further application by Mr Adams to extend time for compliance with the 11 January 2011 order. He recorded, amongst other things, that:-
(i) [Mr Adams'] witness statement of [14 April 2011] gives no remotely adequate reason for a further extension.
(ii) 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. (iii) The action, which is after all brought by a former solicitor, accordingly represents the plainest possible infringement of Rule 3.4(2) of the [CPR].
Master Eyre then refused to extend time for compliance with the order of 11 January 2011, ordered Mr Adams to pay the Defendants' costs, and said that any further application in the case, including for permission to appeal by Mr Adams, should be made to a judge, not to any of the Masters.
Accordingly, on 24 June 2011, Mr Adams issued an application notice returnable before a judge seeking: —
(i) an extension of time for service of the Claim Form pursuant to CPR Part 3.1, or alternatively Part 7.6;
(ii) permission to serve draft amended Particulars of Claim and an extension of time in which to do so pursuant to CPR Part 3;
(iii) in the alternative, permission to appeal out of time against Master Eyre's 14 April 2011 order refusing an extension of time for filing the draft Particulars of Claim, and that the appeal should be allowed.
On 1 September 2011, the Defendants issued an application notice seeking, amongst other relief: —
(i) summary judgment under CPR Part 24.2;
(ii) a strike out under CPR Part 3 on the ground that the claim disclosed no reasonable cause of action.
These two applications ultimately came before Foskett J for a two-day hearing on 20 and 21 March 2012. He delivered a carefully reasoned reserved judgment running to some 176 paragraphs on 17 April 2012.
On 1 June 2012 (the date being delayed because Mr Adams had in the meantime submitted further lengthy submissions and applied for an order that Foskett J should recuse himself on grounds of actual or apparent judicial bias), Foskett J ordered that: —
(i) Mr Adams' applications and each of them were dismissed (for the reasons the judge gave in paragraphs 7-8 of his third judgment dated 1 June 2012);
(ii) Mr Adams' claim form should be struck out and these proceedings (including Mr Adams' claims against each of the Defendants) were dismissed;
(iii) Mr Adams should pay certain costs and make an interim payment of £40,000 on account of costs.
Foskett J also declared that Mr Adams' claims were totally without merit, and gave directions as to the Defendants' application for a civil restraint order to be made against Mr Adams. As I understand the position, however, no civil restraint order has been made.
In his judgment, Foskett J considered a number of allegations against Mr Adams contained in a 36-page Forensic Investigation Report before him dated 23 August 2004 (the "FIR") produced by the Fourth Defendant, Mr Michael Calvert, the Law Society's then Head of Forensic Investigations, following an inspection of Mr Adams' accounting and other records which was commenced on 23 March 2004. The matters on which Foskett J concentrated in his judgment were, in brief, as follows:
(i) Three undisputed breaches of the Solicitors Accounting Rules ("SAR") concerning sums of £95,000, £4,500 and £13,059.15 which it was alleged amounted to the use of clients' money for office, and indirectly, personal purposes.
(ii) The admitted failure by Mr Adams to send some clients formal "client care" letters.
(iii) A number of occasions on which Mr Adams had charged sums as "disbursements" either when he used an "expense rate" of charge (including office overheads) or when he had not spelled out to his client the precise basis on which overheads were charged.
(iv) A case involving a client called "SH" where Mr Adams had transferred two sums of £11,750 from the net proceeds of sale of a property, which had been placed in his client account, to his office account, leading to SH commencing proceedings against Mr Adams.
(v) A number of instances in which Mr Adams had retained significant client balances long after the matters to which they related had been completed.
In the broadest summary, Foskett J held that:-
(i) He did not consider there was any real prospect of Mr Adams succeeding on either his misfeasance in public office case or his ECHR case, and that, whether or not he would accede to any of Mr Adams' other claims, he would dismiss the claims, or would have granted summary judgment to the Defendants had the proposed Particulars of Claim been permitted to be served.
(ii) He did not think he needed to reach a concluded view on the submission that Master Eyre had misapplied his case management powers by preventing the service of the Claim Form in time.
(iii) Since there was no...
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