Joseph Charles Garnham v Christopher Ian Millar (Personally) and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Newey |
| Judgment Date | 11 February 2015 |
| Neutral Citation | [2015] EWHC 274 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC13C05293 |
| Date | 11 February 2015 |
[2015] EWHC 274 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building, Royal Courts of Justice
7 Rolls Buildings, Fetter Lane
London, EC4A 1NL
Mr Justice Newey
Case No: HC13C05293
The Claimant appeared in person
Mr Ian Clarke (instructed by Downs Solicitors LLP) for the Defendants
Hearing dates: 22 & 23 January 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
I have before me an application by the defendants to a claim brought by a Mr Joseph Garnham for the proceedings to be struck out and for a civil restraint order ("CRO") to be made against Mr Garnham. The defendants comprise Downs Solicitors LLP ("Downs") (the fifth defendants); one of the firm's partners, Mr Christopher Millar (the first defendant); Mrs Jane Whiting (the second defendant); a predecessor firm, Downs Solicitors, which ceased trading in 2006 (the third defendants); and the executors of the estate of a Mrs Iris Bristow, who are Mr Millar, Mrs Whiting and a Mr Timothy Hughes, another solicitor with Downs (the fourth defendants). The claims against Mr Millar and Mrs Whiting as the first and second defendants are expressly stated to be made against them personally.
The background
The events with which I am concerned can be traced back to a probate claim that was brought following the death of a Mr Arthur Wilkins. The parties to those proceedings included Mr Garnham and Mrs Bristow, who was Mr Wilkins' sister. The dispute was compromised by a consent order dated 28 October 2003. This order ("the 2003 Order") imposed significant obligations on Mrs Bristow.
In 2009, Mrs Bristow issued proceedings ("the 2009 Proceedings") against Mr Garnham and his wife. The relief sought related in part to false representations that Mr Garnham was alleged to have made to Mrs Bristow shortly before the 2003 Order was made. The particulars of claim asserted that the representations in question were made on 27 October 2003 when Mr Garnham and a Mr Skeels "visited [Mrs Bristow] in hospital and discussed with her the progress of the trial". In his defence and counterclaim, Mr Garnham said that he had tried to visit Mrs Bristow on 27 October, but had not been able to speak to her either then or at any other point in the trial. In her reply and defence to counterclaim, Mrs Bristow maintained that Mr Garnham had seen her on both 26 and 27 October and that the alleged representations had been made on one or other day.
Late in 2009, the 2009 Proceedings were listed to come on for trial in a five-day window from 14 June 2010. In the event, a settlement was agreed at a mediation on 14 May 2010, and the terms were reflected in a Tomlin order sealed on 7 June. Mr Garnham had first indicated a willingness to mediate at the beginning of May.
In advance of the mediation, a position statement was prepared on Mrs Bristow's behalf. This gave as one element of Mrs Bristow's claim, "Damages for Mr Garnham's misrepresentations (which he is now aware were tape recorded)". On 11 May 2010, having seen the position statement, Mr Garnham's counsel sent Mrs Bristow's counsel an email in which he said:
"I have asked Palmers [i.e. Mr Garnham's solicitors] to look at your list of documents to see whether there is a reference to a tape recording of the (asserted) meeting between Mrs B and Mr G at (I assume) the hospital making the asserted misrepresentations. Do you intend to bring the tape to the mediation?"
Mrs Bristow's counsel replied:
"Tape recorded conversation – I am sure the recording can be made available. It is quite difficult to follow as it is both a poor recording and, in some instances, there are two conversations going on at the same time. It has however been transcribed by an expert. Do let me know if you would like a copy of the recording."
In response, Mr Garnham's counsel said:
"I would certainly like to see the transcript of the tape. The tape ought to have been disclosed (Palmers tell me it was not in Mrs B's list and had not been disclosed since). Could you please arrange for them to be sent a copy of the tape and, if my instructions are correct, an explanation for its non-disclosure to date."
That led Mrs Bristow's counsel to say:
"I have referred the transcript issue to my sols – they will provide a copy to Palmers. If the transcript and tape are not in the list of documents then it must simply be that they were overlooked."
In a subsequent email, however, Mrs Bristow's counsel said:
"I have taken instructions on the tape recording at the hospital – it was disclosed as item 49 in C's list. I have it in computer form. Do let me know if you would like me to email the file."
On 13 May 2010, Palmers referred to the subject in a letter to Downs. They said:
"we would point out that item 49 of your list of documents refers to 'copy attendance note DWC' and not a recording from a forensic audio company. Please explain this discrepancy or direct us to the correct item in your client's list of documents."
The likelihood is, it seems, that the list of documents that Downs had served on Mrs Bristow's behalf a few months earlier had not in fact referred to any recording of a conversation between Mrs Bristow and Mr Garnham. According to Mr Millar, the list was subject to revision until 7 December 2009 and, in its final form, had as item 49, "Recording of conversation at St Mary's Hospital Paddington". In contrast, the immediate predecessor, dated 3 December 2009, made no reference to either that recording or more than a dozen other items that featured in the rival version. Mr Millar has said in a witness statement:
"Whether, when the document was sent by fax to Palmers and printed for sending by DX, the wrong file was accessed, I do not know. I suppose it is possible that either I or my secretary … may have made a mistake which (in the latter instance) I failed to pick up.
In any event if that is what happened, it would have been an inadvertent mistake which only came to light during preparation for the Mediation."
For present purposes only, Mr Ian Clarke, who appeared for the defendants, has conceded that it is probable that the existence of the recording was not in fact disclosed until shortly before the mediation.
It is evident that, when the mediation took place, Mr Garnham was far from ready for trial. In the judgment of Proudman J to which I shall refer in a moment, she said (at paragraph 39):
"Mr Garnham was under severe pressure by this stage. His solicitors had said he would apply for an adjournment of the trial, but he had not done so. He was not ready for trial. He apparently had witness statements from his witnesses but was reluctant to exchange them. He was therefore at severe risk that he would not be permitted to rely on them, which was crucial to his counterclaim. He had not instructed an accountancy expert. There were credibility issues about whether he had in fact spoken to [Mrs Bristow] in hospital."
Proudman J's remarks are borne out by a witness statement that a solicitor with Palmers made on 4 May 2010. The solicitor stated in that witness statement that he had omitted to enter the trial date in the diary and further explained:
"I am advised and believe that the Defendants are not, and are not likely to be, ready for a trial on 14 th June 2010. [Mr Garnham] … has told me that he believes that it will take him another month to complete his witness statement [and those of the other 13 witnesses he wishes to call]. He has told me that his own witness statement was likely to run over 130 pages, that he has instructed an accountant to give evidence on his behalf – and that the accountant has indicated that his report is not likely to be ready before September 2010."
Within a matter of weeks after the mediation, Mr Garnham was expressing dissatisfaction with the settlement to which he had agreed. On 7 June 2010, Mr Garnham raised with Master Moncaster the possibility of challenging the settlement and was told that, as a matter of procedure, a fresh action would be required if the Tomlin order were to be set aside.
On 22 June 2011, Mrs Bristow died, aged 97. In the September, notwithstanding the comments that Master Moncaster had made the previous year, Mr Garnham issued an application within the 2009 Proceedings for the setting aside of the Tomlin order. The application was dismissed by Morgan J on 24 November 2011.
In January 2012, Mr Garnham issued new proceedings ("the 2012 Proceedings"). The defendants were described in this way in the heading to the particulars of claim:
"Defendant:
Mrs Iris Edith Garland Bristow (Deceased)
Represented by The Executors of her Estate:
1. Christopher Ian Millar
2. [Jane] Marie Whiting
3. John [Bruen] Hughes".
Mr Garnham asserted in the particulars of claim that the 2009 Proceedings were advanced and promoted by Mrs Bristow and "her Accomplice, [Jane] Marie Whiting", by deliberate misconduct. Allegations of conspiracy to defraud, perjury, perverting the course of justice, duress, deceit, breach of the Civil Procedure Rules, breach of the Solicitors Regulation Authority ("SRA") Code of Conduct and breach of the Data Protection Act 1998 were put forward. The recording featured prominently in Mr Garnham's complaints. Thus, he said for example:
..."The non disclosed Tape/Tapes produced in the form of a CD and a 40 page transcript at the mediation meeting on the 14/ 5/2010, and used as a weapon in an ambush, I never knew existed prior to the mediation meeting."
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