David W. Flavell Consultants Ltd v Uddin

This is a renewed application for permission to appeal. The applicant, the claimant in the court below, is David W. Flavell Consultants Limited, which has been represented by its director, Mr Flavell. The respondent, defendant in the court below, is Kamar Uddin, who practises as Res Ipsa Solicitors. The order under challenge was made in Birmingham County Court by His Honour Judge Robert Owen QC on 28 July 2010, but amended on an uncertain date in early September 2010. The applicant’s appellant’s notice was filed on 2 July 2013. The time for appealing against the judge’s order probably expired on about 18 August 2010 and so the appellant’s notice is nearly three years out of time.

Floyd LJ, on the papers on 19 December 2013, refused permission to appeal on the grounds that the applicant’s proposed challenge to the judge’s adverse factual findings had no real prospect of success, and that the fresh evidence that the applicant wishes to adduce would not affect the outcome of the appeal. He did not deal separately with the prior question of whether the applicant’s time for appealing should be extended. He may perhaps have thought that it would be less painful for the applicant for its permission application to be denied on substantive grounds rather than on a procedural one. Nevertheless the procedural point is important. Time limits imposed by the Civil Procedure Rules mean what they say and are expected to be complied with. They apply as much to litigants in person (and the applicant has been so acting, via Mr Flavell, since the trial in July 2010) as to those represented by lawyers.

The applicant’s claim was for £32,815 for services rendered to Mr Uddin between March 2007 and October 2008. The services were property inspections and resultant reports in housing repair cases that were carried out by Mr Flavell. The claim failed because the judge found on the facts that the respondent’s only liability to pay fees to the applicant was under a legally objectionable conditional fee agreement (‘CFA’) made on 6 June 2007 that offended public policy and rendered the applicant’s claim unenforceable.

I do not propose to explain or summarise the judge’s findings, of which the applicant will be well aware. Suffice it to say that he found Mr Flavell to be a witness whose ‘evidence was wholly unreliable and in my judgment worthless in the absence of independent support from an alternative credible source.’ The judge rejected Mr Flavell’s evidence as to what had been agreed on 6 June 2007, and also the supporting evidence from Mr Vaux, who was employed by Mr Uddin as a clerk: the judge said of Mr Vaux that ‘he too was wholly unreliable and I would not accept his evidence on any material issue without credible independent support elsewhere. I reject his evidence.’ The judge was also critical of Mr Uddin’s professionalism as a solicitor, but he accepted his account of the agreement of 6 June 2007, which led to the dismissal of the claim. It also led to the judge’s referral to the Solicitors Regulatory Authority (‘the SRA’) of the conduct of Mr Vaux and Mr Uddin. That led to a hearing before the Solicitors Disciplinary Tribunal in July 2013 resulting in a very full decision of 24 September 2013.

The applicant now wants an extension of time for appealing. He wishes to have the opportunity of persuading the court that Mr Uddin’s evidence about the 6 June 2007 agreement was a pack of lies and that the court should either reverse Judge Owen’s order or, presumably, remit this stale case for a re-trial.

Mr Flavell’s overriding submission is that in circumstances such as the present, when such serious allegations of dishonesty are being levelled against the conduct of a solicitor, it is in the public interest that this court should investigate them. With respect, I do not, however, agree that the giving of a belated permission to appeal for the purposes of such an inquiry in the present case is justified. The Court of Appeal is not a fact-finding tribunal, and it is no part of its function to carry out the type of investigation that Mr Flavell wants. Judge Owen ensured that the public interest in the integrity of the legal profession was protected by referring the case to the SRA, which led to disciplinary proceedings against Mr Vaux and Mr Uddin. That is the way in which the public interest in the conduct of solicitors is protected. To that end, it is not also necessary for the applicant to be given permission to appeal. The mere fact that a would-be appellant asserts dishonesty against a solicitor is not, without more, a ground for giving permission to appeal.

As to the merits of the proposed appeal, there is plainly no basis upon which it can be said that, on the evidence that was before the judge, he was not entitled to make the findings that he did. It was the judge’s task to assess that evidence and make his findings on it, and he did so.

I presume that the applicant recognises that but it asserts that three years of work have exposed what Mr Flavell says were Mr Uddin’s lies at the trial. He relies heavily on the fact that, some weeks before the trial before Judge Owen, Mr Uddin had been involved in another trial in Leeds County Court in which he was sued for expert fees by MRA (UK) Limited, a company owned by Pervez Akhtar, and in which Mr Uddin’s defence was that he had made a CFA with Mr Akhtar, a claim which the court rejected. The applicant has obtained a witness statement from Mr Akhtar dated 17 March 2014. The thrust of the point that the applicant wishes to make is that Mr Uddin’s prior case based on the making of a CFA showed that his evidence in the Flavell trial, namely that the idea of a CFA at the meeting of 6 June 2007 was a ‘new’ one introduced by Mr Flavell and Mr Vaux, was dishonestly false.

The problem with that line of argument is that the applicant was well aware of the MRA case at the time of the trial before Judge Owen. The applicant’s counsel cross-examined Mr Uddin about it and asked him about the raising of the CFA defence at the prior trial. It may be, as the applicant complains, that Mr Uddin had not, as he should have done, disclosed the judgment in the earlier trial. But since the applicant knew about that trial, it would have been open to it to press for the disclosure of any judgment that Mr Uddin may have had, or to apply for its own transcript. This is evidence that could, with appropriate diligence, have been obtained for use at the Flavell trial but was not. It is not, therefore, fresh evidence that the full court is likely to admit on any appeal.

Nor, in any event, is it seriously arguable that the evidence given at the MRA trial requires a different slant to be placed on Mr Uddin’s case at the Flavell trial. The Solicitors Disciplinary Tribunal knew all about the MRA trial yet had no hesitation in finding, according to the high criminal standard of proof, that the arrangement made on 6 June 2007 was as asserted by Mr Uddin; and they provided full and cogent reasons why the applicant’s subsequent conduct was consistent with that having been the arrangement.

The applicant also asserts that Mr Uddin gave false information in a CPR Part 18 response as to the quantum of fees he had received from clients. It is said that he materially, and dishonestly, understated them, and that Judge Owen ‘clearly placed great weight on the Part 18 request’. It is not clear to me from his judgment that he did so, but even if it is arguable that the applicant is right in this, it appears to me to carry little weight in the determination of the central issue as to whether the claimed 6 June 2007 CFA was or was not made. The judge found that it was made. So, as I have said, did the Solicitors Disciplinary Tribunal. Moreover, the judge’s finding as to the making of the CFA was not based simply on an acceptance of Mr Uddin’s evidence. It was also consistent with the other matters to which the judge referred between paragraphs 80 and 99 of his judgment.

In my judgment, whilst Mr Flavell is plainly passionately convinced that the applicant has been dealt a great injustice by Mr Uddin, the points he has advanced fall well short of showing that an appeal would have any real prospect of success. I consider that it would have no such prospect. Moreover, the appellant’s notice is literally years out of time. There is in my judgment also no justification for extending the time for appealing.

I refuse to extend the applicant’s time for appealing and I also refuse permission to appeal.