R (on the application of Henry) v Bar Standards Board
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Whipple |
| Judgment Date | 28 September 2016 |
| Neutral Citation | [2016] EWHC 2343 (Admin) |
| Docket Number | Case No: CO/2196/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 September 2016 |
[2016] EWHC 2343 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Whipple
Case No: CO/2196/2016
Mr Laurent Sykes QC (instructed by Bar Direct Access Scheme) for the Claimant
Mr Richard Wilkins (instructed by BLM Law) for the Defendant
Hearing dates: 13 September 2016
Judgment Approved by the court for handing down
I heard this renewed application for permission on the afternoon of 13 September 2016. Mr Laurent Sykes QC appeared for Mr Henry, the Claimant. The Bar Standards Board, Defendant, was not formally represented in court, although Mr Wilkins, solicitor at BLM which firm acts for the Bar Standards Board, was present in court and made brief submissions at the end of the hearing in relation to ancillary matters.
I told Mr Henry at the end of the hearing that I was dismissing his renewed application for permission for judicial review because I considered his case to be unarguable. I also told him that I was minded to conclude that the application was also totally without merit, which meant that I was compelled to consider whether I should make a civil restraint order against him, (noting the effect of CPR 23.12). Both Mr Henry (by Mr Sykes) and Mr Wilkins for the BSB asked for permission to lodge written submissions on the issue of a civil restraint order, so I adjourned the matter to enable them to do so. I received short written submissions from each of them, and a witness statement from Mr Henry dated 14 September 2016, which I have read.
These are my reasons for dismissing the application for permission for judicial review, and my conclusion on the issue of whether to make a civil restraint order against Mr Henry.
Background
The complaint arises out of proceedings in the Chancery Division heard by Sarah Asplin QC (as she was, sitting as a deputy high court judge) over 7 days in May 2012, judgment reference [2012] EWHC 2105 (Ch). The claim was brought by Quick Draw Ltd. Quick Draw had lent money to the first Defendant, Global Live Events LLP ("GLE"), in relation to a Michael Jackson tribute concert at the Millennium Stadium in Cardiff in October 2011. GLE was in administration by the time of the trial. Mr Henry was also a defendant. Mr Henry is a solicitor specialising in entertainment and intellectual property law. He was responsible for all the contractual documents drawn up to evidence the loan (see [5] of the Judgment). He was sued as a co-defendant. Also sued were Mr Hunt and a company called Iambic Media Ltd. This I will refer to as the "2012 action".
Quick Draw succeeded in the 2012 action. The Judge found that the conduct of Mr Henry and Mr Hunt fell short of that expected of ordinary honest individuals with their knowledge and experience and that they were both guilty of a dishonest assistance in breach of trust by GLE (see [202] of the Judgment). Mr Henry sought permission to appeal to the Court of Appeal but he was refused permission and that application was certified totally without merit (the refusing judge was Lloyd LJ).
In the 2012 action, Quick Draw was represented by two barristers and Wiggin LLP, solicitors. The Claimant alleges that Quick Draw's legal team made false representations in the course of those proceedings. The Claimant referred the two barristers and the solicitors to their respective professional bodies. So far as the complaints against the barristers are concerned, after some earlier exchanges and litigation which I shall refer to below, the Bar Standards Board ("BSB") refused to refer the matter for disciplinary action. By this action, Mr Henry seeks to challenge that refusal. The refusal was dated 22 January 2016, by way of letter in materially identical terms for each barrister.
The decision under challenge
Mr Henry originally made a large number of complaints against the two barristers to the BSB. Those complaints were considered by the Professional Conduct Committee ("PCC") of the BSB. The PCC split those complaints into two tranches. The first tranche related to complaints 1–6 only. (It dealt separately with complaints 7–337, its decision relating to those latter complaints being the subject of separate proceedings.) In its letters dated 22 January 2016, the PCC concluded that complaints 1–6 did not reveal a potential breach of the code of conduct, in light of which the PCC decided that no further steps should be taken in relation to those complaints which were therefore dismissed.
In the decision letter, the reasons for the PCC's decision were summarised as follows:
"Your complaints 1–6 are in substance that [each of the two barristers] 'falsely represented to the judge that the administrators of GLE had consented to the terms of the draft order'. If the barrister did not misrepresent the position then no breach of the code of conduct can have taken place. You were not acting for the administrators and nor was the barrister. The BSB contacted the administrators of GLE. They have never complained that their position was misrepresented to the court and they were provided with a copy of the order dated 30 July 2012 after it was made. They commented on the Order (through their solicitors Charles Russell LLP) by letter dated 12 August 2012 to Wiggin LLP and did not say their position was misrepresented in the Order or that they had not consented to its terms. In any event they have made no application to set aside or vary the order in the subsequent three years on the basis that they had not consented to it or for any other reason. In those circumstances the committee concluded that there was no sufficient evidence that the barrister made false statements to the court and, accordingly, no sufficient evidence that his conduct constituted a breach of paragraph 301(a) of the Code of Conduct (8 th Edition)."
Extension of Time for Grounds
The decisions under challenge were made on 22 January 2016. Mr Henry issued his claim form seeking judicial review on 21 April 2016, the very last day of the three month "window" for bringing a JR. However, that claim form was incomplete, unaccompanied by any grounds or witness evidence. At section 10 of the claim form Mr Henry indicated a number of documents which he expected to be apply to provide by 9 May 2016, namely the statement of facts and grounds, the witness statement in support of the application, relevant statutory material, and the list of essential documents for advanced reading. The reason given in the claim form for the non-availability of these documents was that his counsel was at the time appearing in the Court of Appeal on his behalf in connection with another matter and lacked sufficient time to reconsider all the evidence and draft and approve the appropriate documentation to accompany this claim form. It was said that counsel would have finished in the Court of Appeal at the close of 22 April 2016, so that the remaining documents would be filed within 14 days from the next working day, namely 9 May 2016.
In the event those documents were filed at Court on 16 May 2016 accompanied by an application for an extension of time and witness statement explaining the delay. They were sent to Bar Standards Board on a date unknown, but (so Mr Henry told me) by 23 May 2016. In the meanwhile, the Bar Standards Board had lodged its acknowledgment of service on 20 May 2016, complaining that it had not had the benefit of seeing the full case against it. The acknowledgement of service answered the very summary case set out in outline only in the claim form but did not deal with any of the detail of the case as it is now advanced.
The papers came before Langstaff J for permission. On 20 July 2016 he refused the application for extension of time and also refused permission. His reason for refusing the extension of time was (Langstaff J's emphasis):
"1. Proceedings by way of judicial review must be brought promptly and in any event within three months, three months is a long-stop limit: delay within that period gives grounds in itself for refusing permission. It is thus incumbent on the litigant whose claim is not submitted until the last day of that period to use the time within that period to best advantage so as to avoid or minimise further delay, and if for good reason that is impossible to act promptly thereafter. I do not consider that he has done either, and though the extension sought is not long, decline to give it."
The Judge then considered the outline grounds in the Claim Form, which were the only grounds properly before him, and refused permission. He said:
"2. The grounds as lodged by 21 April 2016 are hopelessly unspecific: I note, too, that the three grounds then relied on are materially different from those for which an extension of time is sought, such that this therefore amounts to an attempt to put in grounds for review almost four months after a decision, and not a mere detailed clarification of grounds that already were advanced.
3. The grounds as originally advanced do not disclose any error of law, since they are so lacking in particularity."
Before me, Mr Sykes has renewed the application for an extension of time and given a fuller explanation for the delay. I have the benefit of a witness statement filed by Mr Wilkins objecting to the extension of time (the statement is dated 16 June 2014, but that must be a mistake and I take it that the statement was filed in June 2016). I have also had the benefit of a more detailed explanation contained in Mr Henry's notice of...
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