Bahai v Rashidian
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE PARKER,LORD JUSTICE BALCOMBE |
| Judgment Date | 07 October 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J1007-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 85/0549 |
| Date | 07 October 1985 |
and
And in the Matter of an Issue Directed to be Tried as
[1985] EWCA Civ J1007-1
The Master of the Rolls
(Sir John Donaldson) (Not Present)
Lord Justice Parker
and
Lord Justice Balcombe
85/0549
1981 A. No. 1914
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE DRAKE)
Royal Courts of Justice.
MR. COLIN BRODIE Q.C., MR. ALAN STEINFELD and MR. ANDREW STEWART (instructed by Messrs. Max Bitel Greene & Co.) appeared on behalf of the (Claimants) Respondents.
MR. GAVIN LIGHTMAN Q.C. and MR. ISAAC JACOB (instructed by Messrs. Gasquet, Metcalfe & Walton) appeared on behalf of the (Respondent) Appellant.
On the 8th May, 1981 the plaintiff began proceedings against the defendants, as personal representatives of the late Assadollah Rashidian, claiming repayment of a loan of £2 million said to have been made to the deceased in Teheran on the 21st April, 1978. Mr. Michael Harris, a solicitor, acted for the plaintiffs.
After a hearing which lasted 26 days, Mr. Justice Drake gave judgment for the defendants on the 12th December, 1984, finding that there never was any such loan. Mr. Harris had given evidence in support of his clients' claim. The learned judge, in giving judgment, reviewed the evidence and expressed his view on the credibility of the witnesses. In so doing, he was highly critical of Mr. Harris. Thus (at page 74 of the judgment) he said:
"When the claim was first put forward, Mr. Harris tried to put pressure on the Defendants' Solicitors to induce them to put forward an offer to settle the claim. I believe that Mr. Harris's assertion that one of Mr. Rashidian's daughters had offered £l 1/2m. to settle the claim was known by him to be without foundation. Nor do I think he had misunderstood any statement by the Plaintiff that someone else had made any such offer. I think it was simply a crude attempt to persuade the Defendants' Solicitors to advise their clients to make an offer in settlement."
And (at page 75) he said:
"12. I regard the conduct of the Plaintiff's case by Mr. Harris as being deplorable to the extent that it must be due either to (i) gross incompetence on repeated occasions or (ii) an unhealthy desire to see the Plaintiff succeed and if necessary to use improper means to achieve that end. I do not think his actions are wholly if at all due to gross incompetence. When he gave evidence Mr. Harris confirmed my view that his overriding desire is to see his client win this case and that he was prepared to act improperly if he thought it would assist that objective. I formed the view that Mr. Harris is prepared to and on occasions clearly did invent or embellish evidence. I found him an extremely unsatisfactory and unreliable witness."
A little later in his judgment (at page 77) the learned judge added by way of postscript:
"During the course of my judgment I have made some harsh criticisms of the way in which Mr. Harris has acted on behalf of the Plaintiff. I have the very strongest suspicion that this was not due to incompetence but that he has done his best to help put forward a claim he must have known was fabricated. It is not my province to pass judgment on that matter; but like other Judges before me I think it is a matter which requires close scrutiny by the Law Society.
I referred earlier to a judgment in a case in which Harman J. took the view that he had prima facie evidence that Mr. Harris had been involved in a way which, if established, would make him unfit to remain on the Roll of Solicitors. I stated then, and I repeated earlier in this judgment, that I refused to be influenced in any way at all by what was a provisional view formed by Harman J. because it was only a provisional view; and the matter is apparently still being considered by the Law Society.
I have kept faithfully to what I said, and I have not been influenced by the views expressed provisionally by Harman J. But quite independently, on what I have seen and heard from and of Mr. Harris in the present case I have reached the identical independent provisional conclusion. And I have also echoed the words used by Walton J. about the reliability of the evidence given by this solicitor.
In his closing speech Mr. Joseph for the Plaintiff had to concede that in some matters Messrs. Gasquet Metcalfe & Walton, with Mr. Harris in charge, had at least been incompetent. He asked me to attribute their failings to incompetence rather than to any knowledge by Mr. Harris that he was assisting in putting forward a claim which he knew to be false. I have already said that in my opinion Mr. Harris probably did know that the Plaintiff's case was false and his failings are not, in my opinion, due wholly to incompetence.
In either event the matters are likely to be of acute interest to the Law Society and this judgment will be forwarded to the Society for its consideration."
Following the delivery of this judgment, the defendants applied for an order that Mr. Harris be held jointly and severally liable with the plaintiffs to meet the defendants' costs which had been awarded against the plaintiffs on a common fund basis. The learned judge ordered that an issue be tried as to whether Mr. Harris should be held liable for any part of these costs. This, in turn, has led to the delivery of points of claim in the issue by the defendants and points of defence by the plaintiffs.
On the 31st January, 1985 the learned judge wrote to the Secretary of the Professional Purposes Committee of the Law Society enclosing a copy of the transcript of his judgment of the 12th December, 1984 and drawing attention to the specific criticisms of Mr. Harris contained therein. The letter concluded: "I bring these matters to your notice for such action as you may think is required. I have waited for some weeks before writing this letter because I had understood that the case was to be brought back before me on or about 4th February on the issue whether Mr. Harris should personally be made jointly liable to pay the Defendants' costs. I am now told that this issue will not come before me in the immediate future. Accordingly, and also because I understand that my comments about Mr. Harris have recently been given some publicity, I think it wrong to wait longer before writing this letter."
The next step was an application on behalf of Mr. Harris that the learned judge should order that the issue of Mr. Harris's liability to pay the defendants' costs should be heard and determined by a different judge. This application was refused and Mr. Harris now appeals. The basis of the application is set out in the learned judge's judgment of the 7th May, 1985, namely:
"The grounds on which that application has been pursued and made by Mr. Gavin Lightman on behalf of Mr. Harris are really those of natural justice. It is said that I have already made findings against Mr. Harris in my judgment in the main action, that I have expressed strong criticism of grave misconduct on his part and that I have drawn the attention of the Law Disciplinary Committee of the Law Society to my judgment and in a letter to the Law Society I have referred to those criticisms and in certain respects enlarged upon them. It is therefore said that it is contrary to the rules of natural justice that I should hear and decide an application based on grounds on which I have already expressed my strong prima facie views."
Mr. Justice Drake explained that whilst it was distasteful for any judge to find himself trying a matter where one of the parties has complained in advance that he is biased and will be unable to give that party a fair hearing, he regarded it as his duty to adjudicate upon the matter, since he was the judge who had tried the action and the application itself related to the costs of that action. However, he made it clear that he would only do so after Mr. Harris had had an opportunity to call evidence and make submissions.
Mr. Gavin Lightman Q.C., on behalf of Mr. Harris, submits that:
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(a) The learned judge's criticisms of Mr. Harris amounted to saying that he had formed a provisional view that Mr. Harris was guilty of fraud, perjury, conspiracy, forgery and contempt of court.
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(b) If the issue was not determined by another judge, Mr. Harris would have to rebut a case made in proceedings to which he was not a party and where he had had no right of cross-examination or of calling evidence on his own account. This involved a reversal of the normal burden of proof and, which was even more serious, a reversal in the context of criminal or quasi criminal charges.
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(c) Whatever might be the position if less serious charges had been involved, this was contrary to natural justice in relation to charges of this nature.
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(d) The learned judge, having expressed provisional views in strong terms, would have the appearance of bias, although it was not suggested that he would in fact be biased.
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(e) In seeking to rebut the learned judge's provisional views, Mr. Harris would find himself embarrassed by the plaintiff's right to assert a privilege from discovery of communications between him and Mr. Harris.
In my judgment it is of crucial importance to keep in mind at all times what was the nature of the application with which the learned judge was concerned. It was an application to order Mr. Harris to pay all...
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