Michael Wilson & Partners, Ltd v John Forster Emmott
| Jurisdiction | England & Wales |
| Judge | Pelling |
| Judgment Date | 01 July 2022 |
| Neutral Citation | [2022] EWHC 1481 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2021-000532 |
[2022] EWHC 1481 (Comm)
HIS HONOUR JUDGE Pelling QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: CL-2021-000532
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Joseph Dalby SC (Ireland) (instructed by Michael Wilson & Partners Limited) for the Claimant
Mr P.J.Kirby QC (instructed by Armstrong Teasdale Limited) for the 2 nd 3 rd and 4 th Defendants
Mr Charles Dougherty QC (instructed by DAC Beachcroft LLP) for the 5 th Defendant
Mr Charles Dougherty QC (instructed by F Liebling) for the 6 th Defendant
Hearing dates: 10–11 May 2022
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.
HIS HONOUR JUDGE Pelling QC SITTING AS A JUDGE OF THE HIGH COURT
HH Judge Pelling QC:
Introduction
These are applications by the 2 nd to 6 th defendants for:
i) An Order that the Claim Form and Particulars of Claim be struck out:
a) pursuant to CPR r. 3.4(2)(a), on the basis that they disclose no reasonable grounds for bringing the claim; or
b) pursuant to CPR r. 3.4(2)(b), on the basis that the claim is an abuse of the Court's process; or
ii) Summary judgment pursuant to CPR Part 24. on the basis that the claimant has no real prospect of succeeding on the claim factually and there is no other compelling reason for the claim to be disposed of at a trial.
It is axiomatic that a claim can be struck out as an abuse even though there are reasonable grounds for bringing the claim, trite that evidence is not admissible in respect of an application under CPR r. 3.4(2)(a) and obvious that there will be no need to consider the summary judgment application if the claim is struck out. It follows that I consider below firstly, whether as a matter of law there are reasonable grounds for bringing the claim; secondly, if there are, whether the claim is an abuse as alleged and thirdly, if it is not, whether the claimant has real prospect of succeeding on the claim factually.
Background and Claim against the 6 th Defendant
The 1 st to 5 th Defendants
This is the latest in a long line of claims stretching back many years brought by the claimant (“MWP”) (who acts throughout by Mr Michael Wilson as its legal representative) against the 1 st defendant (“Mr Emmott”). What makes this claim different from those that have gone before is that in this claim, MWP has sued not merely Mr Emmott but (i) the estate of Mr Emmott's former solicitor, Mr Michael Robinson (“Mr Robinson”), who died suddenly shortly after the commencement of these proceedings (the 2 nd defendant); (ii) the professional services company through which Mr Robinson provided his services to clients that included Mr Emmott (the 3 rd defendant); (iii) a firm of solicitors by which Mr Robinson was retained as a consultant for a period during which he acted for Mr Emmott (the 4 th defendant) and (iv) Mr Philip Shepherd QC (“PS”), who was retained by Mr Robinson on behalf of Mr Emmott to act as Mr Emmott's leading counsel (the 5 th defendant).
In these proceedings, MWP alleges that over the life of its dispute with Mr Emmott, Mr Emmott (acting by Mr Robinson and/or PS) has applied for costs orders to which he is not entitled by operation of the Indemnity Principle, that in consequence MWP is entitled to recover the sums (i) paid in discharge of the costs orders that were made on those applications, (ii) paid on account of its liability under such orders and (iii) paid pursuant to orders to provide security for costs. He maintains that Mr Robinson, the various entities through which Mr Robinson practiced and PS are all liable either for all the sums claimed or so much of the sums claimed as they each received.
The 6 th Defendant and Dismissal of the Claim against itt
The 6 th Defendant is a professional services company owned solely by PS's wife. PS's wife is a solicitor and she provides her services as a consultant to various law firms using the 6 th Defendant. Ms Shepherd (not the name under which she practices) has not at any stage acted for Mr Emmott. Although PS is a director of the 6 th defendant, he has no other interest in it and has never at any stage provided his professional services to Mr Emmott or Mr Robinson using the 6 th Defendant. I reach that conclusion at this stage because there is no evidence whatsoever to contrary effect.
This point has been made throughout both in correspondence and in the evidence filed after the 6 th defendant issued and served its current application to strike out or for summary judgment and in support of an earlier application to strike out a previous attempt by MWP to bring this claim, to which I refer below.
Ms Shepherd wrote to Mr Wilson about this claim, prior to the issue of proceedings, with a view to explaining why the claim against the 6 th Defendant was misconceived, Mr Wilson responded in unnecessarily aggressive terms but without addressing the substantive points being made other than to say that he disagreed with them. It would unnecessarily lengthen this judgment to refer to all the correspondence. However in an email to Mr Wilson, Ms Shepherd summarised the position as she saw it in these terms:
“To be abundantly clear, Shepherd Legal Limited is my own personal legal consultancy company. No fees have ever been invoiced by or paid to Shepherd Legal Limited in relation to:
(a) the proceedings to which you refer;
(b) any matters relating to John Emmott; and/or
(c) any matters relating to you, Mr Wilson, or MWP.
If you insist on serving proceedings on Shepherd Legal Limited notwithstanding my previous email and the above confirmations, I will apply immediately:
(a) to strike out the claim under CPR rule 3.4(2) and
(b) for the Court to make a Civil Restraint Order against you under CPR rule 3.11 and PD 3C para 5.1.
Given that there are no reasonable grounds for bringing a claim against Shepherd Legal Limited, any claim is clearly vexatious, scurrilous, and obviously ill-founded.
Again, if you insist on serving proceedings on Shepherd Legal Limited notwithstanding the above, then in accordance with CPR Part 6.7(1)(a) you should do so at the business address of Armstrong Teasdale Limited at 200 Strand, London, WC2R 1DJ. Please note that CPR Part 6.7(1)(a) provides that “where the defendant has given in writing the business address within the jurisdiction of a solicitor as an address at which the defendant may be served with the claim form the claim form must be served at the business address of that solicitor” (emphasis added). If service is attempted on Shepherd Legal Limited at its registered office address (which is also my home address), this will not only be a clear breach of CPR Rule 6.7 and not, therefore, effective service, but I will also consider this as an act of harassment.
Given I have no connection whatsoever with the proceedings to which you refer, I cannot accept service of the Orders of HHJ Pelling QC which were emailed to me by you on 5 January 2021. Please can you kindly remove me from all future correspondence in relation to such proceedings.”
Mr Wilson's response was:
“We refer to the enclosed email, the contents of which we note, but with which we disagree given the information available to us.
With respect, we do not need any recommendations, input and advice from you, your colleagues (and P. Shepherd), and will act as we see fit, and in MWP's own best interests given the =£7.32m costs fraud MWP has been wrongly subjected to since 2006, to date.
We will not be corresponding with you any further on these topics”
The correspondence continued however, with Ms Shepherd continuing to explain that there was no basis for any claim against the 6 th Defendant, not least because it had been a dormant company from its formation in 2015 until 2019. This culminated in an email from Ms Shepherd in which she stated:
“… if you insist on serving proceedings on Shepherd Legal Limited notwithstanding there is no basis for any claim against it (for the reasons explained to you on multiple occasions), then in accordance with CPR Part 6.7(1)(a) you should do so at the business address of Armstrong Teasdale Limited at 200 Strand, London, WC2R 1DJ.”
Mr Wilson responded:
“Thank you for your email. You/SLL are not in a position to purport to try to dictate to MWP (in its own right and qua Sinclair), and we do not need any advice from you/SLL, as one of the five defendants to our Part 7 Claim”
Mr Wilson then asserted in an email that “ … AT LLP [that is Armstrong Teasdale LLP] do not act for and are not on the record for SLL, it is not appropriate for emails to be written from and correspondence and documents to emanate from or be served at its address …” In fact in the end MWP served proceedings by post on the 6 th defendant at the address of Armstrong Teasdale LLP, the 6 th defendant's solicitors.
What Mr Wilson had failed to do in any of this correspondence was address the substantive points that had been made repeatedly as to why the 6 th defendant could not on any view be liable to MWP, other than to say that he disagreed.
As I explain in more detail below, MWP made an earlier and misconceived attempt to issue these proceedings by using the Claim Number of an earlier claim issued by it against Mr Emmott but not any of the second to sixth defendants. The proceedings were struck out on technical grounds. MWP applied to have that order rescinded. That...
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