McFaddens v Chandrasekaran

LORD JUSTICE LAWS: I will ask Lord Justice Wilson to give the first judgment.

LORD JUSTICE WILSON: Mr Chandrasekaran, whom it will be convenient to describe as the defendant and who now appears in person, appeals against an order made in favour of McFaddens, solicitors, whom it will be convenient to describe as the claimants, by Irwin J on 20 July 2006. The judge's order was by way of disposal of an appeal brought by the claimants against an order made by Master Leslie on 29 November 2005, whereby he had declined to give summary judgment to the claimants against the defendant upon their claim against him for fees allegedly payable by him. The judge allowed the claimants' appeal, set aside the master's order and entered summary judgment in favour of the claimants against the defendant in the sum of £516,426 inclusive of interest.

The power to give summary judgment against a defendant is set out in rule 24.2 of the Civil Procedure Rules ("the Rules"). It is of course a discretionary power but it can be exercised only if the court considers that the defendant has no real prospect of successfully defending the claim. The master had concluded that the claimants had not established that the defendant had no such prospect; but the judge concluded that the master had been wrong. Before both the master and the judge the defendant was represented by Mr John Macdonald QC; and it was Mr Macdonald who drafted the grounds for the defendant's appeal to this court. Although, as he also acted at the outset of the proceedings, the defendant has recently begun to act in person and has filed a late supplementary skeleton argument which ranges far and wide over the issues in this and allegedly related litigation between him on the one hand and the claimants and their alleged associates on the other, all clearly very hard-fought and acrimonious, it is important for us to remember the grounds of appeal which Mr Macdonald identified and for which permission to appeal has been given. The overarching complaint is that the judge did not confine himself to a "review" of the master's decision but, without notice to the defendant, conducted a "re-hearing" of the application for summary judgment. The argument is that it was unfair to the defendant for the judge, without warning and indeed without invitation, to survey numerous background matters for himself and, in part by reference to them, to reach conclusions adverse to the defendant. The grounds refer in particular to one feature of the judge's reasoning, namely his conclusion that the defendant had been suspiciously slow to articulate the case which he now advances by way of defence of the claimants' claim. The argument is that, in circumstances in which the master had made no reference to this point and in which the Notice of Appeal to the judge had made no complaint against the master's omission in this regard, it was not open to the judge, without at least giving the defendant a full opportunity to prepare a response, to place considerable reliance on it; and that, in particular, when after dissemination of the judge's draft judgment the defendant applied for leave to adduce a letter allegedly relevant to this issue, it was wrong for the judge to refuse it.

Rule 52.11(1) of the Rules provides that:

Between about December 2003 and January 2005 the claimants represented the defendant in an action brought by them and an offshore trust company against Deloitte and Touche Wealth Management Limited ("Deloittes"). The claim in the present proceedings is for fees of £444,460 exclusive of interest allegedly owing by the defendant to the claimants in respect of work done on his behalf in that action. The foundation of the claim is a letter by the claimants to the defendant dated 28 November 2003, by which they set out the terms upon which they would act for him in the action, at the foot of which are subscribed first the typed words "The above is agreed", then the defendant's signature and then, apparently also in his handwriting, the date "5th Dec. 2003". Before the judge Mr Macdonald conceded on behalf of the defendant that, by its terms, the document obliged the defendant to pay the claimants' fees in respect of the action against Deloittes, whether or not the defendant was successful therein. It went on to provide, however, that, apart from an initial payment to the claimants of £50,000 and apart from a requirement to pay the fees of leading counsel and of experts as soon as the claimants became liable for them, no further payment was liable to be made by the defendant to the claimants referable either to their fees or to the fees of junior counsel until after the trial of the action against Deloittes, fixed to begin in April 2004, and, in the event of an order for costs therein in favour of the defendant, not until after such costs had been assessed.

The defence of the defendant was and is that the letter dated 28 November 2003, admittedly countersigned by him, is a sham; that, as the claimants are well aware, the true agreement between them referable to fees was reached orally on a date or dates in November and/or December 2003; that its terms were entirely different, namely that, apart from in one respect, the defendant would have no liability to meet the costs to be incurred on his behalf in the action against Deloittes otherwise than out of any sum awarded to him therein by way either of costs or of damages; and that the one further respect in which consideration would be provided by him to the claimants and to junior counsel for their work in the action was to be by way of the issue or transfer of shares to the claimants and to junior counsel in an existing company or a fresh company which success in the action against Deloittes would enable him to revive or create and, in either event, to operate and profitably to develop.

The defendant is a computer scientist and has remarkable technical virtuosity. His particular field is that of cryptography. Many years ago he founded a company called Indicii Salus Limited ("Indicii") and its success and value grew fast. The defendant took the advice of Deloittes in relation to a proposed disposal of some or all of his stock in Indicii to best fiscal advantage; and the action against Deloittes arose from his allegation that in that regard they had been negligent. In about 2002 the fortunes of Indicii nosedived. It was rescued by a loan to it on the part of an offshore company which was secured by a debenture over its assets. The defendant alleges, and the claimants I believe accept, that the effective controller of the offshore company was a South African lawyer and businessman named Mr Montague Koppel, whom the master was later to describe as the éminence grise behind the history. It is part of the defendant's case that the claimants have been incited to bring these falsely-based proceedings by Mr Koppel, with whom the defendant is now at loggerheads and who, according to the defendant, is intent upon destroying him financially.

By November 2003 Indicii was subject to administrative receivership imposed upon it, directly or indirectly, by exercise of the powers in the debenture and thus, according to the defendant, in effect imposed upon it by Mr Koppel. The defendant explains that accordingly at that time his financial future was very much in the hands of Mr Koppel, with whom he then remained on close terms. The defendant also points out that it was greatly in Mr Koppel's interest that the defendant's personal action against Deloittes should yield a substantial recovery. Solicitors other than the claimants had until then been conducting the action against Deloittes on behalf of the defendant; but he was finding it increasingly difficult to meet their demands for the continued funding of their fees in relation to it. In that regard matters were brought to a head by a payment into court of £350,000 by Deloittes on 7 November 2003. Unfortunately, as things turned out, the defendant never accepted that payment into court; and, in the judgment under present appeal, the judge rejected his assertion that, in declining to accept it, his will had been overborne by the aggressive over-optimism of Mr Koppel. At all events the fact was that, after he had declined to accept it, the defendant was unable to meet the renewed demands of the other solicitors for payment of fees for the further prosecution of the action to trial.

Such, broadly, were the circumstances in which the defendant came to instruct the claimants to represent him in the action against Deloittes instead of the previous solicitors. There is no doubt that it was Mr Koppel who suggested that the defendant should instruct the claimants, who had acted for Mr Koppel in another action; no doubt that Mr Koppel suggested that the junior counsel thenceforth to be instructed in the action should be his son-in-law, Mr Denis Daly; no doubt that there were discussions, on any view unusual, that the claimants and Mr Daly might in part be remunerated by the gift of an equity stake in Indicii, were it ultimately to come out of receivership, or in some fresh company which, with the anticipated benefits of the recovery against Deloittes and with his own singular expertise, the defendant might take, operate and develop; and no doubt that it was Mr Koppel, who, directly or indirectly, paid, first, to the former solicitors £13,000 to secure release of their papers, second, to the claimants £50,000, for which, as an initial payment, the letter dated 28 November 2003 had provided, and third, during the next six months, to the claimants sums totalling £189,000 referable to their liability for the fees of leading counsel and experts. But it is the contention of the claimants that such subventions of the defendant by or on behalf of Mr Koppel in no way detract from the validity of the conventional agreement for the defendant's responsibility for their fees reflected by that letter. It is indeed clear that all three of Mr Koppel's payments or categories of payment, totalling £252,000, were the subject of written agreements with the defendant, in which they were recorded as loans which he was bound to repay; and clear also that, in their claim, the claimants have given credit for the payment of £50,000 and have not included a claim referable to the disbursements covered by the payments totalling £189,000.

On 16 June 2004, by way of determination of the action against Deloittes, Patten J gave judgment for the defendant and the trust company in the sum of only £5 and, in the light of the payment into court, ordered them to pay a substantial sum in respect of the costs of Deloittes. On 26 November 2004 the defendant and the trust company secured permission to appeal to this court against the order of Patten J, whereafter those proceedings were finally settled upon the basis apparently of a reduction in the liability of the defendant and the trust company for the costs of Deloittes. It follows that in the event the action against Deloittes yielded the defendant no net recovery whatever.

Meanwhile, shortly after the order made by Patten J, namely on 30 June 2004, the claimants had written to the defendant in relation to their fees and those of Mr Daly. They pointed out that, in the light of the end of the trial, the agreed moratorium for payment had expired and they requested settlement of those fees by 1 October 2004. In the judgment under present appeal the judge attached considerable significance to the failure of the defendant to respond to that letter and, in particular, to deny liability for any such fees otherwise than out of sums recovered in the action against Deloittes and/or by way of equity stake in Indicii or a fresh company. The defendant accepts that he ignored the letter: his case is that Mr Koppel told him to do so.

On 6 December 2004 the claimants wrote again to the defendant: they enclosed their bill of costs in the sum of £444,460 and requested his proposals for its payment. Again, as the judge noted, the defendant did not respond. It is his case that again Mr Koppel told him not to do so. The defendant suggests that it was explicitly understood, including by the claimants, that he would not respond to their letter.

On 10 February 2005 the claimants issued their claim against the defendant. On 8 March 2005 the defendant, then acting in person, wrote a letter directly to Master Leslie in which he sought an extension of time for filing a defence. At first sight the relevant paragraphs are numbers 10 and 11 but this morning the defendant has specifically asked us to consider paragraphs 7 and 8 and, having done so, I agree with him that at any rate paragraph 8 is also worthy of inclusion in the following quotation from the letter:

In declining to give summary judgment for the claimants the master had attached importance to a memorandum of a telephone conversation with the defendant made by an officer of the offshore trust company on 25 November 2003. According to her note, the defendant had told her that Mr Koppel had offered to fund the proceedings against Deloittes to the end because he believed that the case was strong; that Mr Koppel was prepared to fund between £300,000 and £400,000 but wanted his son-in-law to be appointed as junior counsel for the defendant and sought a first charge on funds recovered in the action "up to the amount contributed by him on behalf of [the defendant] during the trial". At the end of his judgment the master asked himself whether it was fanciful to say that the claimants had been put up to making the claim by Mr Koppel as part of a wider campaign against the defendant. The master's conclusion was that "given the background by which Mr Koppel and [the claimants] appear to have known each other well" it was going too far to say that it was fanciful.

The defendant strongly relies upon the limited contents of the grounds of appeal contained within the claimants' Notice of Appeal to the judge. The grounds contained only five points. First the claimants contended that there was no evidence that they had been put up to bringing the proceedings by Mr Koppel and indeed no evidence that they and Mr Koppel "knew each other well". Second they contended that the loan agreements between the defendant and Mr Koppel's company referable to the latter's contribution to the costs should have been considered as entirely consistent with their case that the defendant was liable for their fees. Third they contended that the master should have noted that the defendant's assertion in his defence that the alleged oral agreement was reached on 15 November 2003 had later been resiled from by the defendant and was in any event inconsistent with documentation which evidenced later discussions. Fourth they contended that the master had misconstrued the meaning of the note made by the officer of the trust company and in particular that comments by the defendant to her that Mr Koppel would "fund the trial" and had sought a charge up to the amount contributed by him "on behalf of [the defendant]" were just as consistent with a conventional scenario under which a litigant was responsible for the fees incurred in the prosecution of his action as with the unconventional scenario that a solicitor's letter was a sham and that, absent success in the action, the litigant would have no responsibility for the fees otherwise than by an equity stake in a future venture. Fifth they contended that the master had ignored an assertion by the defendant in August 2004, in the course of the attempted appeal against the order of Patten J, to the effect that he had a substantial liability to the claimants in respect of his costs of the action.

On 23 May 2006 Irwin J received argument from both leading counsel on the appeal and concluded the hearing; and on about 25 May 2006 he sent a draft of his judgment to the parties. In his judgment the judge set the history of the matter out at some length and with apparent care. He noted that the defendant's case was that the letter dated 28 November 2003 was a sham and that Mr Macdonald had been constrained to accept that, on the defendant's case, the letter was a fraud and moreover that, had the action against Deloittes been successful, it could have been used in order to extract costs against them which might, if indeed it was a fraud, not properly be payable. The judge observed that the defendant's claim that he had been party to a fraud meant that his overall credibility as a witness could hardly be other than low. By reference to contemporary documents, the judge rejected the defendant's claim that, left to himself, he would have accepted the money paid into court by Deloittes in November 2003. He also accepted that the note made by the officer of the trust company of her conversation with the defendant did not indicate that he then understood that he would have no liability for the claimants' fees unless the action against Deloittes succeeded; by implication the judge there concluded that the master had been wrong to attach significance to the note in the defendant's favour. The judge noted that, notwithstanding a wealth of contemporaneous documentation in relation to the discussions between the parties and including Mr Koppel in November and December 2003, there was nothing in it to suggest that the letter dated 28 November was a sham or that the defendant was not ultimately to be responsible for the costs in the normal way. Later the judge said:

Ultimately, reminding himself that he could allow the appeal only if satisfied that the decision of the master was wrong and that in this area there would often be a spectrum of opinions within which none of them could be categorised as wrong, the judge nevertheless concluded that the master's conclusion had fallen outside the spectrum and that he had been wrong to conclude that the claimants had failed to establish that the defendant had no real prospect of successfully defending the claim.

I turn then to the overarching complaint of the defendant that, without warning to him, the judge, in effect although not in name, conducted a re-hearing of the application for summary judgment. I am convinced that the starting point for the enquiry is for us to remind ourselves of the nature of the judge's substantive task. He was, as he expressly accepted, charged with considering whether the master had been wrong to conclude that the claimants had failed to establish that the defendant had no real prospect of successfully defending the claim. Provided that he did so in accordance with the Rules, the judge's obligation was to adopt a procedure, fair to both sides, which would best enable him to discharge that substantive task. In that regard the relevant rule was 52.11(1), which I have set out at §4 above. It is not irrelevant that, in exercising the power given to him under rule 52.11(1) and indeed in interpreting that rule itself and thus the meaning of the word "review" contained within it, the judge was required by rule 1.2 to seek to give effect to the overriding objective of dealing with cases justly.

The word "review" has not been included in the glossary appended to the Rules pursuant to rule 2.2. Its exclusion was wise because of the particular need for at least some flexibility in the choice by an appellate court of the procedure most apt to the fulfilment of its varying substantive task. But the meaning of the word, and in particular the distinction between it and a re-hearing postulated by rule 52.11, have been the subject of guidance given in this court, of which I find the most relevant to be that of May LJ in EI Du Pont de Nemours & Co v ST Dupont [2003] EWCA Civ 1368, [2006] 1 WLR 2793, especially in the following paragraphs:

The decision of the master in the present case had indeed been a multi-factorial decision, dependent upon analysis of documentary material and inferences properly to be drawn therefrom. I have no doubt that some appeals from masters to judges can be the subject of satisfactory "review" by reference to little more than a transcript of the master's judgment, the grounds of appeal and rival argument: appeals on points of law or in relation to case management decisions may well fall for despatch in that way. But I have no doubt that in the present case the judge could fulfil his substantive task to consider whether the master's conclusion was wrong only by reference to all the material which had been before the master himself. And, most importantly, it was never suggested to the judge that he could properly determine the appeal by any narrower enquiry. Thus all the bundles which had been before the master were, by agreement on both sides, placed before the judge on the basis, inevitably, that he could consider everything therein, whether or not the subject of specific reference in the master's judgment or in the grounds of appeal. The material before the master, thus placed before the judge, included the skeleton arguments presented to the master; and in the claimants' skeleton argument before the master there had been substantial reference to the alleged importance of the defendant's delay in stating his case. Of particular significance in my view is the further fact that Mr Macdonald filed a skeleton argument in defence of the master's order which, with only very minor variations, repeated, paragraph after paragraph, the skeleton argument which he had placed before the master: thus Mr Macdonald himself was inevitably thereby accepting — indeed asserting — that a debate about the master's verdict upon the defendant's prospect of success could and should take place on no narrower a basis than that upon which the argument had proceeded before the master himself. Nor, so Mr Harvie tells us, did Mr Macdonald articulate any complaint at the hearing on 23 May about the range of his, Mr Harvie's, oral submissions in support of the appeal; indeed the range of Mr Macdonald's oral submissions in answer seems to have been no narrower. Nor, when the judge of his own motion raised points which he had collected from the bundles filed for his use, did Mr Macdonald seek to suggest that consideration of them would exceed the proper bounds of a review. In summary Mr Macdonald never complained to Irwin J that his side was being ambushed by the improper or at least unexpected articulation of points.

I reject the charge that the judge went further than to conduct a "review" of the master's decision. Both he and leading counsel on both sides must be taken to have accepted, by implication, that no narrower enquiry would enable him to determine the appeal; and, in the light in particular of the guidance of May LJ which I have quoted at §19 above, I have no difficulty in describing the nature of the enquiry which he conducted as a "review" within the meaning of the rule.

It was on any view unfortunate and surprising that, in their grounds of appeal to the judge, the claimants did not refer to the defendant's history of missing opportunities to articulate his case. It was a glaringly obvious point, which they had specifically made in the skeleton argument placed before the master and which he had entirely failed to address. It was a much more potent point than some of the five points contained in their grounds of appeal. Nor did Mr Harvie seek to insinuate the point into his skeleton argument on the appeal. But his earlier skeleton argument was, as I have explained, placed before the judge; and he tells us today that it was the judge who raised the point and invited submissions on it not only from himself but also, and in particular, from Mr Macdonald, who responded to the invitation without demur. As we have seen, the judge described the point as "perhaps most striking of all"; and here on balance I disagree with Mr Harvie because I consider that the judge was there indicating that it was perhaps the most striking of all the various points made against the quality of the defendant's defence.

In this appeal the defendant argues that, because the point had not been flagged up by the claimants for the judge's consideration, an inadequate response was given to it on his behalf. In this regard the defendant can certainly add nothing to protect himself from the criticism of his silences in July and December 2004. In relation, however, to his stance early in 2005, he would argue that, contrary to the judge's finding, he did make a "substantive" response to the claim prior to the letter to the master dated 8 March 2005. He points to letters dated 3 and 6 March 2005 from him to the claimants, which were in the bundles filed for the judge's use. By the former letter he made clear that the claim was "completely denied". By the latter he described the claim as "totally unjust"; stated that he did not propose to go further into the matter until he filed his defence and asserted that Mr Koppel had advised him not to talk to the claimants for a period. In my view these letters are without significance: they do not detract from such delay in his statement of his case as would be extraordinary if it was or might well be true.

The final document upon which the defendant would rely in this regard is the document which in July 2006, after the judge had disseminated his draft judgment, the defendant unsuccessfully applied to introduce into evidence. Part of the appeal to this court is against the refusal of that application and so it is necessary briefly to consider the document. It is a letter by email from the defendant to Mr Koppel allegedly sent on 25 February 2005. In the letter the defendant says:

This, therefore, is a letter, apparently sent in February 2005, but not to the claimants themselves, which the defendant contends to be relevant to an allegation which from November 2005 onwards he knew to be made against him, namely that he had been suspiciously slow in putting forward his defence. If relevant, why was it not produced by him for consideration by the master in November 2005 and thus by the judge in May 2006. It is true that in August 2005, in other proceedings against him and his wife which may well have been brought against him at the instigation of Mr Koppel, a search and seizure order was made against him as a result of which, at least for a time, material on his personal computers was taken from him. But he has not properly explained the delay in the attempted adduction of this letter in evidence. More importantly, my view is that it carries the defendant virtually nowhere. It is, again, in large part an assertion that later, however provocatively to Mr Koppel, he would spell out the basis of the deal entered into late in 2003. Insofar as the letter vouchsafes any detail of that deal, it is an assertion that Mr Koppel agreed to pay the claimants not just the amounts which he did pay to them but, apparently, everything which they were then claiming against the defendant. The allegation that Mr Koppel had assumed an open-ended liability for all the costs to be incurred in the action against Deloittes is not something which I have seen reflected in any other of the defendant's presentations. In any event there was not nearly enough in the letter to Mr Koppel to salvage the defendant's position before the judge; and, in the light also of the lateness of the application, it was well within the judge's powers to refuse to allow it to be adduced.

I would dismiss the appeal.

LORD JUSTICE SCOTT BAKER: I agree.

LORD JUSTICE LAWS: So do I.