Adams v Law Society of England & Wales

LORD JUSTICE HOOPER: There are two applications for permission to appeal listed before me this morning. The first is an application for permission to appeal the judgment of HHJ Weeks QC dated 3 March 2006. HHJ Weeks ordered that the claim be struck out as an abuse of process, that the claimant (now appellant) pay the costs of the claim including the costs of the application, such costs to be subject to detailed assessment if not agreed, and that permission to appeal the order made by HHJ Weeks be refused. There is also an application for permission to appeal the order of Sullivan J made on 22 November 2005. Sullivan J refused an application for permission to apply for judicial review and thereafter refused permission to appeal.

Mr Adams is not present and in writing he has made an application for an adjournment in respect of both permission applications. Before considering that application I shall set out some of the history of the proceedings in both cases.

I start with the appellant’s case against the Law Society, case number 2006/0582. The appellant is a solicitor who was admitted to the roll in 1978. At the beginning of 2004 the Law Society received four complaints by clients and former clients against the appellant. The Law Society sent in a forensic team to carry out an inspection on 23 March 2004. After considering the report of the forensic team the Law Society suspected dishonesty and the relevant panel decided to intervene in the appellant’s practice. On 1 September 2004 the solicitors, instructed by the Law Society, put the intervention into effect, served a notice on the appellant at his home and office. The appellant refused to hand over the files. As a result there were two applications made. The Law Society applied for an injunction requiring Mr Adams to hand over the files and the appellant applied to put a stop to the intervention.

The application was heard by Laddie J on 3 September 2004. The appellant was represented by counsel. Laddie J decided that the intervention should continue and ordered the appellant to hand over the files to the solicitors for the Law Society. The Law Society undertook to exercise its powers in such a way as to mitigate the effect on the appellant and not be proactive in contacting his clients. The appellant undertook to issue and serve an application for the withdrawal of the intervention as soon as reasonably practical.

Laddie J directed the following:

The appellant dispensed with his legal team and on 8 September 2004 issued a claim form under Part 8. The appellant included with the claim form his “Particulars of Claim”. The claim put forward in the Particulars of Claim can be summarised as follows:

On 31 May 2005, the Law Society issued an application to strike out the appellant’s claim. The application was listed to be heard on 15 July 2005. The appellant wrote to the assigned Master requesting an adjournment. On 1 July 2005 the Master granted the adjournment and fixed the hearing for 24 October 2005. The appellant was ordered to file any evidence in opposition to the Law Society’s application to strike out the appellant’s claim within fourteen days from service of the 1 July 2005 order. The appellant failed to comply and instead in the week before the hearing fixed for 24 October 2005 he produced two documents, one entitled “Second Witness Statement” and the other “Third Witness Statement”. They were both unsigned. Having regard to the very late service of those two documents, the hearing fixed for 24 October had to be adjourned. On that day the Master ordered that the applications should be referred to a judge for hearing some time after 10 January 2006. The appellant was to file evidence by 4.00pm on 20 November 2005 and the Law Society to file evidence in reply by 18 December 2005. The appellant failed to comply.

The Law Society filed further evidence in February 2006 and the appellant filed a fourth witness statement of some three hundred pages and a short fifth witness statement a few days before the hearing. The application came on before HHJ Weeks on 3 March 2006. He gave summary judgment for the Law Society and struck out the appellant’s claim. The appellant filed a notice seeking to appeal that decision on 16 March 2006.

I turn to the procedural history of the other application for permission. The appellant disputed his liability for the fees of a barrister who claimed to be owed £8,000 plus VAT as a brief fee for a 2-day trial in March 2001. The matter was referred to the joint tribunal of the Bar Council. This was in accordance with the standard terms of work on which barristers are instructed by solicitors. The terms provide in Clause 14 that fee disputes should be referred to the joint tribunal, and that the decision of the tribunal is to be binding upon the parties. The appellant agreed to be bound by the joint tribunal procedure on 26 November 2003 subject to a requirement that there be a period of negotiation between the parties before any hearing. The joint tribunal decision was made on 19 November 2004. The joint tribunal found the appellant liable to the barrister for the £8,000 plus VAT claim. The appellant attempted judicially to review the decision of the joint tribunal. He was unsuccessful on the papers before Newman J who gave his decision on 25 April 2005. The renewed application for permission for judicial review was then considered and refused at an oral hearing by Sullivan J on 22 November 2005. Mr Adams attended that hearing and the transcripts of his submissions can be found in the bundle that has been prepared for these appeal proceedings.

Returning to the case against the Law Society, the appeal bundle which has been prepared for the hearing includes at page 8 the grounds of appeal, which take up some two pages. Attached to that is a skeleton argument which had been prepared for the hearing before HHJ Weeks. That runs from page 10 through to 19 of the bundle. At tab 2 of the bundle from page 27 to 34 is a document dated 30 May 2006 which is headed:

In the case of the application for permission to appeal the decision of Sullivan J, there is a very substantial bundle containing over 386 pages. It includes the appellant’s notice and a one and a half page ground of appeal attached to which are the detailed statements of the grounds which were before Sullivan J.

Against the background of all of that material I turn to the application for an adjournment. The first application for an adjournment in relation to the claim against the Law Society, in regard to the intervention, was on 26 September 2006. Mr Adams wrote to the Civil Appeals Officer saying that he had been signed off work for a fortnight until Monday 2 October 2006. He enclosed a copy of the medical certificate which says this: “You should refrain from work for two weeks”. Then against the words: “Diagnosis of your disorder causing absence for work” is to be found the words: “Stress related problems”.

On 28 September Mr Adams wrote a 4-page letter to the Civil Appeals Office enclosing a report from a consultant psychiatrist, Dr Pierides. Mr Adams then set out a number of further matters which concerned other proceedings in which he was involved. In paragraph 3 he refers to the report of Dr Pierides and to the fact that he suffered from a fairly severe knee injury causing him pain. He said that he had been referred to a consultant orthopaedic surgeon. The letter continues:

In paragraph 4 Mr Adams set out what he saw as further preparation required before the application for permission to appeal was considered. In paragraph 4a he refers to his draft 312-page fourth witness statement. He then refers to other material which he would like to elaborate on. He ends the letter by saying that if justice is to be done he was not in a fit state to present the arguments:

Attached to that letter was a psychiatric report from Dr Pierides. That report states:

As a result of that letter and the accompanying report it was ordered that the application for permission to appeal be taken out of the list for 3 October and relisted for the week beginning 18 September 2006. Any further application for an adjournment, it was ordered, was to be supported by a psychiatric report and prognosis. The case was then listed for today, 19 December.

On 15 December Mr Adams wrote a letter to the court including a further medical report from Dr Pierides, the consultant psychiatrist. He sought an adjournment in the light of that report pointing out that the fact that his case had been earlier adjourned:

The letter from Dr Pierides states:

On 18 December, in purported compliance with the order of Smith LJ, Mr Adams sent a letter containing fifteen pages to this court requesting an adjournment. In the letter he states that he will be unable to appear before the court in respect of either of the two permission applications with which this hearing this morning is concerned. He said this:

The letter then continues with two examples of what had occurred during the course of the proceedings, and then sets out at page 3 arguments as to why the order of Sullivan J refusing permission to appeal was wrong. He complains that Sullivan J had simply ignored his arguments. In one of the paragraphs he refers to a conversation with his next door neighbour, a Professor of Law at the University of London, and seeks to pray in aid what the next door neighbour had said to him about these cases.

In the letter at pages 4 to 5 he sets out the history of the earlier applications for an adjournment. At paragraph 5 onwards he sets out his case that the papers are not in an adequate state. He says:

He then sets out a number of reasons why the decision of HHJ Weeks is wrong. At paragraph 15 he cites what his neighbour, the Professor, had to say about one of his arguments. Apparently the Professor explained in astonishment:

In paragraph 22 onwards he addresses the concern about the indeterminate nature of his treatment and recovery. In paragraph 22 he says:

In paragraph 25 he says that he was attending an assessment appointment on Wednesday 20 September and he said he could use that to ascertain the length of the waiting list and he could ask for expedition for the suggested treatment. He then suggests that if the court were to order a further adjournment of say two months, or better still two and a half months, this would enable the picture to become clearer:

In paragraph 27 he writes:

In paragraph 28 he attacks what he calls the fraudsters at the Law Society, and then in paragraph 29 and 30 he says that if this court were to continue with the hearing in his absence that in itself would be a breach of Article 6. Attached to that letter is a further letter from the consultant psychiatrist that is dated 28 September:

There is a further fax from Mr Adams addressed to me. In that letter he states that he cannot attend this morning and feels very strongly that his rights to an oral hearing and just as important the right to prepare all the necessary written material have been swept away unjustly. There is then attached to that a 5-page document headed:

There is a further letter from the solicitors to the Law Society in the case of the appellant against the Law Society. The solicitors are aware of the application for an adjournment and write:

Although the Law Society by that letter, which has just been handed to me, takes the view that it is a matter for the court to decide the issue and that they do not raise an objection, it seems to me that it is important for me to decide for myself whether this application should be granted.

Although Mr Adams claims that it would be unfair to him to resolve the issue, and although the Law Society take a neutral stance in the matter, I have to bear in mind the fairness not only to Mr Adams but also the proper functioning of the court. It is important that appeals be disposed of within a reasonable time. Having regard to the whole history of these proceedings, it seems to me that there is no real likelihood of Mr Adams being ready to prosecute these applications for permission within the foreseeable future. I reach that decision taking into account all of the letters from the psychiatrist and taking into account the whole history of these proceedings.

I note also the reference to a dental appointment this morning. It is important, in my judgment, to achieve finality. The rights of the defendant to a fair appeal are obviously important but they must be balanced against the needs to achieve finality and bring applications of this kind to a conclusion one way or the other. That said, I would not refuse an adjournment if I considered that there was any merit in either of these two applications. In my judgment there is no merit for the reasons which I shall now give.

I turn to the judgment of HHJ Weeks. He sets out the grounds for intervention under the Solicitors Act. That entitles the Law Society to intervene where amongst other things “the Council have reason to suspect dishonesty” on the part of a solicitor. The judge sets out in paragraph 2 of his judgment what it was which led the Law Society “to have reason to suspect dishonesty”. I note what the appellant has to say about those grounds in the various documents to be found in the appeal bundle.

Having traced the history of the case, the learned judge goes on to deal at paragraph 26 onwards with the application. In paragraph 26 he says that the grounds on which the application to strike out are made are two. It is said that it is an abuse of the process to allow this application to continue because of the time that has elapsed. The Law Society’s argument was that the court cannot now grant the relief which was sought under the appellant’s claim and the action should be stopped.

Having set out the applicable Civil Procedure Rule in paragraph 26, he went on to examine the case. In paragraph 28 he points out that the intervention procedure is to give a quick remedy to a solicitor who considers that the intervention in his practice is not warranted and who seeks to recover his files and his money:

HHJ Weeks said that the court would not grant the relief sought:

In paragraph 31 and onwards he went on to analyse whether there was a compelling reason for the matter to proceed to trial. He then cites a number of decisions on the need for a speedy process. He cites one case in which Jacob J, as he then was, said:

He then deals with a number of submissions made by Mr Adams, all of which are now cited by him as grounds of appeal against the decision of the judge. Mr Adams had argued that it was important for this application to go to the trial as a means of restoring his reputation. As the judge in my view rightly pointed out, Mr Adams’s reputation would not be in issue at any trial.

In paragraph 41 the judge points out that the purpose of the procedure is to obtain an order to restore the current files to a solicitor. He goes on:

At paragraph 42 he deals with an argument made by Mr Adams which he reiterates in his grounds of appeal: the issue of the propriety of the intervention will not be adjudicated on unless this matter goes to trial and Mr Adams has his “day in court”. The judge rejects that submission. He points out that as the courts have said before this procedure is a summary one for getting the files back. It is not a suitable procedure for establishing for whether or not an intervention was justified at the start. He went on to say what the court has to decide is whether or not the intervention should continue. That is the basic question which has to be decided. That did not form a compelling reason for a trial.

In paragraph 43 the judge deals with allegations which had been made by Mr Adams both before HHJ Weeks and repeated in the grounds of appeal, the skeleton argument and repeated in the correspondence which he has sent to this court. He alleges that the Law Society had been fraudulent and deceitful in that they had deliberately falsified parts of the report. The judge says this is not a reason for having a trial of this simple issue, namely whether or not there was reason to suspect dishonesty. The judge makes this clear in paragraph 44:

In paragraph 45 he deals with an argument which again Mr Adams makes in his application for permission to appeal, and that is the issue of the European Convention of Human Rights. The judge held that these kind of proceedings had been authoritatively decided as not raising any breach of the European Convention. In paragraph 3 of his grounds of appeal at page 8 of the bundle he submits that there are two novel arguments which are not dealt with by the leading decision in Holder v The Law Society . He submits that the very low threshold imposes a reverse of the burden of proof and he submits that the intervention on the grounds of suspected dishonesty constitutes criminal proceedings. In my judgment, neither of those two arguments have any merit. It has clearly been established that this kind of procedure is a necessary way of protecting the public. The rationale for this kind of procedure is set out in the decision in Holder v The Law Society .

The judge then went on to deal with the issue of costs. Mr Adams has submitted that the costs of the intervention were in the region of £113,000 and therefore there should be a trial of the issue so that the issue of costs could then be resolved in his favour if he was successful in his claim against the Law Society. The judge rejected that argument in paragraph 48. It is said by Mr Adams in his skeleton argument that the judge misunderstood the issue of costs. He says that the judge understood that the costs had been incurred in the course of litigation. That, in my judgment, is not right. It is clear that paragraph 48 relates to the cost of the intervention.

In the document which is headed “Thoughts of Nigel Adams on Verdi” Mr Adams raises the issue of the relevance of the delay in progressing this application. In my judgment, the conclusion of the judge that the court would not now grant relief, having regard to the considerable passage of time, is unappealable. In my judgment there is no merit in any of the grounds. Mr Adams was able to develop fully the grounds he wished to develop before HHJ Weeks. HHJ Weeks did not accept those grounds. He gave cogent and unassailable reasons for rejecting them. I see nothing new in any of the arguments put forward by Mr Adams which could in any way undermine the conclusions reached by HHJ Weeks.

With that in mind I go back finally to consider the application for an adjournment. I am very mindful of the letter which has just arrived in from the Law Society leaving it to this court to decide the matter and stating, as I have indicated, that they did not raise an objection. I take the view that there are no merits in this application for permission. Mr Adams has been able to make full submissions to this court seeking permission to appeal the judgment of HHJ Weeks. I have considered all of those submissions carefully and I take the view that having regard to my view on the merits having regard to the whole history of these proceedings it would be wrong to grant any further adjournment. The application for an adjournment is refused as also the application for permission to appeal in the case of Adams v The Law Society

I now turn to the case which Mr Adams brought against the Bar Council Joint Tribunal, the General Council of the Bar and the Law Society of England and Wales. Sullivan J refused permission to apply for judicial review, as I have said, after having heard submissions from Mr Adams. I read from part of the judgment which will be found at page 18:

The judge then refers to the White Book and refers in particular to a decision therein set out. He concluded that he was:

The judge then sets out the terms on which barristers offer their services and points out that there was no evidence that the claimant attempted to exclude or vary those terms, although it was open to him to do so. He then sets out the terms of the scheme insofar as they deal with disputes. He sets out the claimant’s agreement to be bound by the tribunal procedure. He deals with the claimant’s argument that the proviso that there should be negotiations had not been complied with. Sullivan J says it was open to the claimant to raise the failure to comply with the proviso before the tribunal. He goes on to say that this is pre-eminently an example of a private law matter which is not susceptible to judicial review. Sullivan J then deals with an argument which Mr Adams has again raised in his grounds of appeal to this court, namely that he was forced to enter the agreement by the Law Society’s rules because if he did not he would lose his opportunity to challenge counsel’s fees. As to that argument, Sullivan J said:

Sullivan J then deals with another argument again raised by Mr Adams before this court as to the effect of the European Convention on Human Rights. The judge points out that the Convention does not prevent the parties from entering into agreements for the payment of fees and for the resolution of disputes in the event of a challenge to fees. The right of the parties, he says, to choose to refer their disputes to experts or arbitrators does not in any way infringe their rights under the ECHR. There is then a reference to an argument about competition law.

The arguments which Mr Adams made unsuccessfully before Sullivan J are repeated in his submissions to this court. For my part I see no merit in those arguments at all for the reasons given by Sullivan J.

I therefore return again to the issue of the application for adjournment. In this case there is to my knowledge no letter from the respondents in this application for permission. I bear in mind that there is an obligation to pay money to a barrister, which I shall assume has not yet been met. In considering the issue of fairness to Mr Adams, I must also consider the issue of fairness to the barrister and to those who are formally respondents in this case.

Given the complete absence of any merits I take the view that I should refuse the adjournment. I also refuse the application for permission.