ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Mr Justice Flaux
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LADY JUSTICE GLOSTER
Vice President of the Court of Appeal, Civil Division
and
LORD JUSTICE BRIGGS
Between :
PETER MATTHEW JAMES GRAY | Applicant (and Additional Respondent) |
- and – | |
ABDOURAHMAN MOHAMED MAHMOUD BOREH
| Respondent (and Defendant) |
- and - | |
REPUBLIC OF DJIBOUTI AUTORITE DES PORTS ET DES ZONES FRANCHES DE DJIBOUTI PORT AUTONOME INTERNATIONAL DE DJIBOUTI | Respondents (and Claimants) |
- and - | |
GIBSON DUNN & CRUTCHER LLP | Respondent (and Additional Respondent) |
Mr Mark Simpson QC, Mr Nico Leslie and Mr James Hart (instructed by Al Bawardi Critchlow) for the Applicant, Mr Gray
Mr Dominic Kendrick QC and Mr James Willan (instructed by Byrne and Partners) for the Respondent, Mr Boreh
Hearing date : 3 February 2016
Further submissions received on 7 December 2016, on 21 December 2016 and on 7 January 2017.
Judgment Approved
Lady Justice Gloster:
Introduction
This is an application for permission to appeal by a non-party to the proceedings, a Mr Peter Gray (“the applicant” or “Mr Gray”), against certain findings of fact made by Flaux J in the course of a successful application made by the defendant, Mr Boreh, in a Commercial Court action, to set aside a freezing order which had been made against him and for an order for wasted costs against Gibson Dunn & Crutcher LLP (“Gibson Dunn"). The application was made on the ground, amongst others, that the claimants in the action, the Republic of Djibouti and others (“the claimants”), had dishonestly misled the court through their solicitor, Mr Gray, a partner in the Dubai office of Gibson Dunn at the material time, in connection with the application for the freezing order.
Mr Gray was not himself personally a party to the application made by Mr Boreh to set aside the freezing order, and no relief was sought against him. He served factual evidence - initially on behalf of the claimants, and later on behalf of Gibson Dunn - concerning the circumstances in which the court had been misled. Counsel for Mr Boreh applied for an order for Mr Gray’s cross-examination, as neither the claimants, nor Gibson Dunn, proposed to tender him for cross-examination. An order for his cross-examination was made by Flaux J, expressly pursuant to CPR r. 32.7. At the hearing of the application, which lasted for five days, Mr Gray was called to give evidence by the court, but not by virtue of any exercise of the court’s compulsive powers, but “since he was an officer of the court” and because neither the claimants nor Gibson Dunn were calling him as their witness.
Mr Gray was permitted to make representations through his own leading counsel at the hearing of Mr Boreh’s set aside application. However, he was only formally joined to the proceedings following the hand down of Flaux J’s judgment on the application, and following a successful application by Mr Boreh for wasted costs against Gibson Dunn. Even then, he was joined “only for the purposes of applying for permission to appeal”; see paragraph 11 of the order dated 31 March 2015.
The issues on the application are: (i) has this court jurisdiction to entertain an appeal by Mr Gray; and (ii) if so, should permission to appeal be granted.
Procedural background
The detailed chronology is as follows.
On 11 September 2013, on the application of the claimants, Flaux J granted a freezing order, proprietary injunctions and other relief against Mr Boreh after a two day inter partes hearing. The principal affidavits in support of the freezing order application had been sworn by Mr Gray, who was the principal partner with the conduct of the action on the claimants’ behalf, and who was involved at all material times on their behalf, until shortly before the hearing of the set aside application.
In a judgment dated 13 November 2014, Flaux J determined that he had been misled at the time of the application for the freezing injunction. Subsequent to service of Mr Gray’s fifth affidavit on 29 December 2014, Mr Boreh applied by notice dated 9 January 2015 to set aside the freezing injunction and other relief which had been granted on 11 September 2013. The basis for the set aside application was that the claimants and their legal representatives had deliberately and/or recklessly misled the court in the application for the freezing order and subsequently. The application was supported by a fourth affidavit of 9 January 2015 by a Ms Jefferies on behalf of Mr Boreh which, as recognised by Mr Gray in his counsel’s skeleton argument for the set aside hearing dated 27 February 2015, made “numerous allegations of deliberate dishonesty against Mr Gray”. The underlying allegation by Mr Boreh was that the criminal charges of terrorism against Mr Boreh had been used by the claimants and by Gibson Dunn “as part of a strategy to force a settlement of the civil proceedings and the civil proceedings have been used to lend credibility to the criminal charges.”
In the light of the extremely serious allegations made against him, Mr Gray chose to instruct a separate counsel team from that instructed by Gibson Dunn, namely Mr Mark Simpson QC, Mr Nico Leslie and Mr James Hart of counsel. They submitted a skeleton argument dated 27 February 2015, although they had clearly been instructed some time before that date. In addition, Mr Gray served a sixth affidavit dated 17 February 2000 and a seventh affidavit dated 26 February 2015 which his skeleton argument described as “putting a very substantial amount of privileged material before the court ……intended to give, so far as possible given the volume of documents reviewed, a fair picture of Mr Gray’s conduct and state of mind.” Those affidavits recognised, again according to Mr Gray’s skeleton, that he had “made serious errors of judgment, for which he profoundly apologises to this court.”
By a letter dated 25 February 2015, Mr Gray and Gibson Dunn together reported the allegations made by Mr Boreh in the proceedings to the Solicitors’ Regulation Authority.
The issues for determination at the hearing which took place over five days on 2 to 5 March and 9 March 2015 were thus: (i) whether Mr Gray had deliberately and/or recklessly misled the court; and (ii) whether the freezing injunction, proprietary injunction and other relief granted on 11 September 2013 should be set aside or some other order made by the court.
Because of the seriousness of the allegations of dishonesty being made against Mr Gray and the implications for him of a finding that he had deliberately misled the court, the hearing was conducted on a fully robed basis. At the hearing Mr Gray was represented by the three counsel who had signed his skeleton argument. The legal test applied by Flaux J in determining whether Mr Gray had deliberately misled the court and had thus been guilty, not just of professional misconduct but also of dishonesty was that stated by the Divisional Court (Richards LJ and Aikens J) in Bryant v Law Society [2007] EWHC 3043 (Admin); [2009] 1 WLR 163, namely, first, whether Mr Gray acted dishonestly by the ordinary standards of reasonable and honest people; and, secondly, whether he was aware that by those standards he was acting dishonestly.
In his judgment delivered on 23 March 2015, Flaux J found that Mr Gray had deliberately and dishonestly misled the court in the application for the freezing order in September 2013 and that, subsequently, in September to November 2014, he had dishonestly sought to cover up that fact. His judgment is to be found at [2015] EWHC 769 (Comm) and runs to 83 pages, dealing in detail with the allegations made against Mr Gray. As a result, by his order dated 23 March 2015 Flaux J set aside the freezing order. That order, against which Mr Gray seeks permission to appeal, did not include any declaration of fact relating to Mr Gray’s conduct, nor did it include any provision directed at him personally. Mr Gray is not seeking to set aside any of the express provisions of the order, none of which were made against him personally; he is merely seeking to set aside the findings of dishonesty made against him by Flaux J.
By a further consequential order dated 31 March 2015 (sealed on 22 April 2015), Flaux J made certain costs orders against the claimants and a wasted costs order against Gibson Dunn. The consequential costs order dated 31 March 2015 referred, by way of description of certain costs, to “the costs of investigating and redressing the misleading evidence given by Mr Gray” (para 2c) and “the costs incurred …as a result of the improper and/or unreasonable acts or omissions of Mr Peter Gray (as identified in the judgment)”. Again, Mr Gray does not seek to appeal against those costs orders. As I have already said, paragraph 11 of the 31 March 2015 order joined Mr Gray as an additional respondent to the proceedings, for the purposes of applying for permission to appeal.
Both the claimants and Gibson Dunn were represented by leading counsel at the set aside hearing and the consequential hearings. Neither sought permission to appeal.
At a case management hearing, which took place on 14 April 2015, Flaux J refused Mr Gray’s application for permission to appeal the order dated 23 March 2015 setting aside the freezing order; see paragraph 1 of the order dated 14 April 2015 (sealed on 6 May 2015). The reasons which he gave were that, first, he had doubts as to whether the Court of Appeal had jurisdiction to entertain an appeal in such circumstances; he considered that this was a matter for this court itself to determine. Second, in any event, Flaux J did not consider that Mr Gray had any real prospect of successfully challenging his findings of fact on an appeal, given that he had heard Mr Gray give evidence.
By an order dated 1 July 2015 Lewison LJ adjourned Mr Gray’s application to this court for permission to appeal to an oral hearing on notice. Nevertheless, he expressed doubts: (1) that the court had jurisdiction to hear the appeal; and (2) that the appeal had any real prospect of success given that the judge’s factual findings were closely reasoned. He directed that the court would be assisted by arguments from both sides on the question of jurisdiction.
By his amended Notice of Appeal, Mr Gray stated that he was challenging “the judge’s findings of dishonesty against me”, which he conceded “do not currently appear in the order of 23 March 2015”. However, he submitted “that they either should have been or should be included”. In his grounds of appeal, he raised three grounds which went to procedural unfairness (grounds 1 to 3). These alleged that the procedure adopted by the judge was fundamentally unfair inter alia because:
it meant that Mr Gray did not know the case he had to meet;
the judge made numerous findings of fact which were not pleaded or put to Mr Gray, in relation to which disclosure was not given, witnesses were not called and which Mr Gray had no adequate opportunity to meet;
the judge made a finding of dishonesty in relation to paragraph 41 of Mr Gray’s fourth affidavit in circumstances in which the judge was not asked by anyone to make such a finding, there had been no waiver of privilege and thus Mr Gray was hampered in dealing with it, Mr Gray and his legal team were not ready to meet it, it had not been put to Mr Gray and Mr Gray’s counsel had not made submissions on it because he believed that it was not being pursued.
He also set out nine substantive grounds of appeal (grounds 4 to 12) which allegedly demonstrated that the judge had been “plainly” wrong to reach certain factual conclusions.
The issue of law on this application is therefore whether this court has jurisdiction to hear an appeal by a non-party to proceedings in respect of a finding of dishonesty made against him in those proceedings, in circumstances where the non-party is not seeking to have any operative terms of the order set aside. If that issue is decided in the affirmative, then the court has to go on to consider whether Mr Gray’s appeal has a real prospect of success such as to justify the granting of permission.
The trial of the full action concluded on 8 December 2015, and judgment was handed down by Flaux J on 2 March 2016. The judgment is reported at Republic of Djibouti & Ors v Boreh & Ors [2016] EWHC 405 (Comm). By his judgment Flaux J dismissed all the claims made by the claimants against Mr Boreh and his companies. The claimants applied for permission to appeal, but were refused permission by the Court of Appeal (at an oral hearing).
Shortly after the judgment was given in the set aside application, Mr Gray was dismissed as a partner and employee of Gibson Dunn. He is currently subject to disciplinary investigation by the SRA. The Bar Standards Board also initiated disciplinary proceedings against leading counsel who acted for the claimants on the freezing application, namely Mr Khawar Qureshi QC. In July 2016 the BSB dismissed all complaints in relation to the professional conduct of Mr Qureshi.
The subsequent procedural history of this application
The court heard oral argument in this matter on 3 February 2016. Shortly thereafter the court ascertained that a full three-member Court of Appeal constitution was currently considering, on another appeal (Re W (a child) CA Ref. B4/2015/1962), a very similar jurisdictional issue as that which arose in the present case. As a result the court informed the parties on Friday 5 February 2016 that, accordingly, and in the absence of submissions to the contrary, it proposed to await the hand down of the judgment in that case before delivering judgment on the jurisdiction issue in the present case, because it took the view that it was more satisfactory that a court comprising 3 members, rather than a court consisting of only 2 members, on a permission to appeal application, should give the determinative judgment in respect of what is clearly an important point of law. The parties were also told that if it was appropriate, they would be given an opportunity to make submissions on the judgment in Re W (a child) and that there had already been a hearing in the other matter with a final hearing date fixed for 19 February 2016. No submissions were received from the parties opposing that course.
Unfortunately, the resumed hearing date in Re W (a child) had to be vacated due to the indisposition of one of the members of that court. Thereafter, listing difficulties led to further delay and the hearing in that case was not concluded until 16 June 2016. The parties in this case were kept informed of the position in relation to Re W (a child). After judgment was finally handed down in the latter case on 17 November 2016 (Footnote: 1) directions were given by the court in this case for the service of further submissions by the parties in relation to the effect of the decision in Re W (a child). Further submissions were duly received on 7 December 2016 (on behalf of Mr Gray) and on 21 December 2016 (on behalf of Mr Boreh) and on 7 January 2017 (on behalf of Mr Gray).
The judgment in Re W (A Child)
Necessary background reading to this case is the judgment of this court in Re W (a child), delivered by McFarlane LJ, with whom the President of the Family Division and Christopher Clarke LJ agreed. What happened in that case may be summarised as follows. The original judgment had been given by a circuit judge, sitting as a deputy High Court judge within ongoing care proceedings relating to a number of children. The judgment, which was extensive, related entirely to fact-finding in relation to allegations of sexual abuse made in respect to a number of family members by "C" an older sibling of the children who were the subject of the proceedings. In addition to the children's parents and the children themselves, two male family members had been joined as parties for the fact-finding part of the proceedings as C had made specific allegations of sexual abuse against them. After a lengthy hearing and a very full analysis of all of the relevant material, the judge found that none of C's allegations were proved. In coming to his conclusion he was critical of a range of professionals who, in various ways, were involved with C in the extended period during which C's apparent account of sexual abuse developed. No party to the proceedings had sought to appeal against the judge's conclusion that the sexual abuse allegations were not proved. Within the proceedings the statutory threshold criteria in Children Act l989, s 31 had been met on grounds that were unrelated to the sexual abuse allegations at an earlier hearing. In the event, by the time of the appeal, matters had moved on and all of the children were back at home with their parents, the proceedings had concluded and there were no longer any live public law orders in place with respect to any of the children.
In addition to dismissing the sexual abuse allegations, the judge had included in his fact-finding judgment a range of criticisms and findings as to the actions of the local authority, the wider group of professionals involved and, in particular, an individual social worker and an individual police officer, both of whom the judge proposed to name.
Permission to appeal was granted by this court to the local authority, the named social worker ("SW") and the named police officer ("PO"). Their appeal sought the removal from the judgment of the passages complained of. Their complaint related to the judge's finding that SW and PO, together with other professionals and the foster carer, were involved in a joint enterprise to obtain evidence to prove the sexual abuse allegations irrespective of any underlying truth and irrespective of the relevant professional guidelines. The judge found that SW was the principal instigator of this joint enterprise and that SW had drawn the other professionals in. The judge found that both SW and PO had lied to the court with respect to an important aspect of the child sexual abuse investigation. The judge found that the local authority and the police generally, but SW and PO in particular, had subjected C to a high level of emotional abuse over a sustained period as a result of their professional interaction with her. In addition to the specific adverse findings made against the local authority, SW and PO also complain that there was no justification for the judge deploying the strong adjectives which he used in describing the scale of his findings in a judgment which, in due course, in its final form, would be made public.
The issues canvassed in the appeal related entirely to process. This court was not asked to analyse the evidence underpinning the judge's adverse findings nor to determine whether or not the judge was justified in criticising the professionals as he did. The central point raised by each of the three appellants was that the prospect of them being the subject of such adverse findings was made known to them, for the very first time, when the judge gave an oral "bullet point" judgment at the conclusion of the hearing. It was submitted on their behalf that the individual and collective adverse findings of the type that the judge went on to make in his judgment, did not feature at all in the presentation of the case of any of the parties and were not raised in any manner by the judge during the hearing. It was said that those highly adverse findings "came out of the blue" for the first time in the judgment and that, both in nature and substance, such findings had the potential to impact adversely upon the standing of the local authority and/or the employment prospects and personal life of each of SW and PO, yet none of the three had been given any opportunity to know of or meet the allegations during the course of the trial process. They contended that the trial process had been in breach of their rights under article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and, in the case of SW and PO, on the basis that the process was so unfair as to amount to a breach of their rights to respect for their private and family life under article 8 of the Convention. No issue was taken before the court as to the potential applicability of article 8 to the professional lives of SW and PO. They therefore sought a remedy from the Court of Appeal to prevent the inclusion of those adverse and extraneous findings in the final judgment that had yet to be handed down formally and published as the judge intended it to be.
The critical issues in the case for present purposes were whether, in circumstances where:
none of the three appellants had sought to challenge the judge's determination on the sexual abuse allegations themselves;
nor to challenge any particular court order or determination that had been made by the judge; and
SW and PO were no more than individual witnesses within the proceedings and neither of them had been made "a full party" or "an intervenor" at the first instance stage;
any of the three appellants was entitled to bring an appeal and whether the Court of Appeal had jurisdiction to entertain an appeal under section 16 of the Senior Courts Act 1981.
In relation to these issues McFarlane LJ held, in summary:
that under the Family Procedure Rules 2010 (“FPC 2010”) both SW and PO were each party to the proceedings sufficient to afford them a right to appeal under the Matrimonial and Family Proceedings Act 1984, section 31K (Footnote: 2); (I interpose to say that that conclusion is not relevant for the purposes of this case, since neither that act nor the FPC 2010 are relevant);
that in light of the “clear” interpretation of CPR r 52.1(3)(d) given in MA Holdings Ltd. v George Wimpey UK Ltd. and Tewkesbury Borough Council [2008] EWCA Civ 12 by Dyson LJ at paragraphs 9-22, it was clear that the Court of Appeal might entertain an appeal from SW and/or PO irrespective of whether they were formally made a party (or intervenor) in the lower court (Footnote: 3); in particular McFarlane LJ relied upon the following conclusion of Dyson LJ at paragraph 22 as follows:
“In my view, the question of jurisdiction turns on the true meaning of "appellant" in rule 52.1(3)(d) which, for the reasons I have given, does not require that the person seeking to appeal was a party in the proceedings in the lower court. I do not consider that it is necessary to have regard to CPR 19. Even if an application by MA under rule 19.2 and 19.4 to be added as a party in the proceedings below would have failed, that fact cannot shed any light on the true meaning of "appellant". I accept, however, that the fact that such an application was not made may be relevant to the question whether MA should be given permission to appeal.”;
accordingly, he held that each of the appellants were indeed appellants;
that, although in circumstances which did not give rise to issues under the Convention, authorities such as Cie Noga SA v Australia and New Zealand Banking Group [2002] EWCA Civ 1142; [2003] 1 WLR 307 and Re M (Children) (Judge's findings of fact: jurisdiction to appeal) [2013] EWCA Civ 1170, demonstrated that normally this court does not have jurisdiction to entertain an appeal against findings of fact which do not amount to a determination, order or judgment, the court did nonetheless have jurisdiction to entertain the appellants’ appeals
“on the basis that they each assert that the judge has acted in such a way so as to amount to a breach of their rights under ECHR, Arts 6 and/or 8 pursuant to HRA 1998, ss 7 to 9”
and because, as he had held,
“there was, most unfortunately, a wholesale failure to achieve a fair trial in relation to the matters that the judge went on to find proved against them, which are outside the parameters of the issues in the case and are the subject of this appeal.”;
that it was clear that that the High Court had acted in a way which was incompatible, i.e. in breach of, the Convention rights of PO, SW and the local authority to a fair trial, in relation to the adverse findings that had been made against them; that, accordingly, the private life rights of SW and PO under Art 8 would be breached if the judgment, insofar as it made direct criticism of them, was allowed to stand in the final form as proposed by the judge; and that likewise the same conclusion, in the context of Art 6 and the common law, applied with respect to the adverse findings made against the local authority; and
that accordingly those parts of the judge’s judgment which recorded the adverse findings which he had made were to be set aside as though they had never been made in any form and the judgment was to be appropriately redacted.
The parties’ arguments on the application for permission to appeal
In summary, Mr Mark Simpson QC, Mr Nico Leslie and Mr James Hart, who appeared on behalf of Mr Gray on the application for permission to appeal, submitted both orally and in writing as follows:
The decision in Re W (a child) demonstrated that the court had jurisdiction to hear Mr Gray’s appeal, based on ECHR article 8. Thus, as in Re W (a child) itself, the judge’s findings against Mr Gray were a “judicial act” which, on the facts of this case, were capable of being held to be “unlawful” under HRA 1998, s7(1). They were the proper subject of an appeal, and there was accordingly no need for the court to consider whether, in accordance with the approach in Cie-Noga, those findings constituted a “decision, “determination”, “order” or “judgment” (or whether the order made by Flaux J could or should be amended to constitute one).
The decision in Re W (a child) applied to the present case. At paragraph 119 of his judgment McFarlane LJ summarised the position as follows:
“Where, as I have found to be the case here, the adverse findings complained of have been made as a result of a wholly unfair process and where, again as here, the consequences for those criticised in those findings are both real and significant, it is incumbent on this court to provide a remedy and, so far as may be possible, to correct the effect of the unfairness that has occurred.”
The first three grounds in Mr Gray’s notice of appeal argued that the adverse findings made by Flaux J against him were made as a result of a wholly unfair process. For the purpose of deciding whether this court has jurisdiction Mr Gray’s submissions as to unfair process had to be assumed to be well founded. The issue of whether they were actually well founded was a matter for the permission stage and, if permission were granted, for the substantive appeal itself.
It was also clear that the consequences of the judge’s adverse findings for a practising commercial solicitor were real and serious. A finding by the Commercial Court that a solicitor and officer of the court had deliberately and dishonestly misled the court was devastating, and potentially terminal, to Mr Gray’s career. Indeed, his employment with Gibson Dunn had been terminated within a month of judgment being delivered.
On the facts of this case, Mr Gray’s protection under article 8 extended to his “private life”. Mr Gray’s position was, if anything, worse than that of the professionals in Re W (a child), in that Flaux J’s judgment had already been published. As a result of the judge’s public, and widely reported, findings of dishonesty Mr Gray had lost his job and if the findings were to stand then it was self-evident that he would be very unlikely to find similar employment again.
In the alternative to the argument under article 8, the court had jurisdiction to entertain Mr Gray’s appeal if, in accordance with the approach adopted in Cie-Noga, the court exercised its discretion to amend the order below by making a declaration that Mr Gray deliberately misled the court in the ways set out in Flaux J’s judgment.
His case on appeal, if permission to appeal were granted, would be that the process adopted by the judge was manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under article 8 and/or the common law. On the facts he had a realistic prospect of establishing that such was the case and accordingly permission to appeal should be granted.
In light of the decision in Re W (a child) Mr Dominic Kendrick QC and Mr James Willan, who appeared on behalf of Mr Boreh, as the technical respondent to the appeal:
accepted that this court had jurisdiction to entertain Mr Gray’s “procedural” appeal, as set out in paragraphs 1 to 3 of his grounds of appeal, although contended that permission should be refused on the merits as having no real prospect of success; but
maintained that the Court had no jurisdiction to entertain Mr Gray’s “substantive” appeal, as set out in paragraphs 4 to 12 of his grounds of appeal, which challenged the Judge’s reasoning process and the weight given by him to different pieces of evidence/inference, because those factual findings did not engage his article 8 rights.
In addition, he submitted as follows:
Nothing in Re W (a child) provided a pertinent route of appeal in relation to Mr Gray’s substantive grounds of appeal. Article 8 provided procedural safeguards in terms of the right to a fair process: it did not provide a guarantee that a judge, having operated a fair process, would reach the correct conclusion on the substance of the case. Moreover, the right to a fair process did not require that a litigant be afforded a right of appeal against a decision with which he disagreed on the substance. (Footnote: 4)
In the circumstances, even if the remaining grounds of appeal were made out, that would not have involved the court acting unlawfully for the purposes of section 6(1) of the Human Rights Act 1998: a court did not act unlawfully by getting the wrong answer on the merits. Therefore, the route of appeal established by Re W (a child) could not be relied upon in respect of that part of his appeal.
That limitation on Mr Gray’s ability to appeal not only followed from Re W (a child) but was inherently desirable: it was one thing to say that a witness whose professional reputation was at stake should not be criticised without warning and a fair opportunity to respond (as in Re W (a child) itself) but it would be quite another to allow a professional witness to appeal simply because he or she disagreed with a judge’s criticism of his or her evidence, professionalism or conduct.
The judge granted Mr Boreh relief against the claimants and Gibson Dunn, not Mr Gray. Mr Gray was not challenging the judge’s order and he had no right to challenge the reasons which led the judge to grant relief against the claimants and Gibson Dunn.
Even if the Court of Appeal could assume jurisdiction, it should decline to do so as a matter of discretion, because Mr Gray has no real interest in the appeal. In particular:
there would be a real difficulty for the Court, at this belated stage, in conducting a proper appeal hearing which is academic to the other parties to the action;
there was a public forum in which either Mr Gray could vindicate his reputation or suffer the disciplinary consequences of dishonesty – namely, the Solicitors Disciplinary Tribunal; but this appeal was postponing the day of reckoning before that Tribunal, which did not assist the interests of justice or the reputation of the legal profession.
Discussion and determination
Jurisdiction
In the light of this court’s decision in Re W (a child), and Mr Kendrick’s concession on behalf of the respondent, I am prepared to assume for the purposes of this case that this court would have jurisdiction to entertain an appeal in relation to Mr Gray’s grounds 1 – 3 which both parties accept prima facie engage his article 8 rights. (Footnote: 5)
If permission were granted and the appeal on such grounds were allowed, then, as McFarlane LJ pointed out in Re W (a child), it would be incumbent upon the court to provide a remedy and, so far as may be possible, to correct the effect of any unfairness which has occurred. In my judgment, if unfairness of process were established on an appeal, one of the remedies which the court might – at least hypothetically - direct in such circumstances, would be a rehearing of the set aside application. That would be because, realistically, it might be very difficult in this case to adopt the approach taken in Re W (a child), viz. remove any references to the deliberate deception by Mr Gray and amend the judgment so that it simply concluded that the court had been misled, whether deliberately or otherwise. In the former eventuality (i.e. a direction by this court on the appeal that, because of the procedural unfairness to Mr Gray, there should be a complete rehearing of the set-aside application), the outcome of such an appeal might indeed effectively be equivalent to an appeal against the substantive factual findings made by the judge. To that extent, therefore, I do not accept Mr Kendrick’s submissions that the outcome of a Re W (a child) type appeal could never involve a retrial of factual findings by a first instance judge, or could not theoretically do so in this case. To that limited extent I accept the submissions made by Mr Simpson in his written submissions in response in relation to Re W (a child).
However, I accept Mr Kendrick’s submission that, in the absence of permission being given to Mr Gray to bring an appeal in relation to ground 1 – 3 (i.e. the procedural grounds) there could be no free-standing appeal by Mr Gray in relation to his so-called “substantive” appeal, as set out in paragraphs 4 to 12 of his grounds of appeal, because this court would have no jurisdiction to entertain such an appeal.
In summary, my reasons for such a conclusion are:
Contrary to the position of the appellant in MA Holdings supra, Mr Gray was not a person who was substantively affected by Flaux J’s decision to set aside the freezing order or who had any substantive interest in it being set aside, such as to confer on him a right of appeal. Mr Gray had no personal, in the sense of financial or proprietary, interest in the freezing order remaining in place, or being set aside. He had no legal or equitable rights which were affected in any way by the decision. His only interest in the outcome of the set aside application was reputational. The fact that, pursuant to Flaux J’s order dated 31 March 2015, he was joined as a respondent to the proceedings “solely for the purposes of applying for permission to appeal” cannot per se confer on him “party” or “appellant” status. If McFarlane LJ was deciding at paragraph 41 of his judgment in Re W (a child) that, even in the absence of (a) a substantive interest in the outcome of an appeal and (b) an allegation that a court, in coming to a decision, had acted in breach of a witness’ article 8 private life rights or article 6 rights, a witness had sufficient status to appeal, I would, with respect, disagree with him.
The decisions in Cie-Noga SA and Re M (Children) (Judge's findings of fact: jurisdiction to appeal) supra clearly demonstrate that, normally, this court does not have jurisdiction to entertain an appeal against findings of fact which do not amount to a determination, order or judgment, unless they concern the issue upon which the determination of the whole case ultimately turns or are otherwise subject of a declaration within the order. Although this court (or indeed the first instance court) may have power to amend an order to include a declaration, since
“clearly, such a declaration carries significant import in relation to finality of proceedings which should render them the rare exception rather than the rule. They should not be incorporated without the most careful judicial consideration as to consequences and effect.”
see per Macur LJ in Re M (Children) (Judge's findings of fact: jurisdiction to appeal) at para 21. In the present case there is no justification for this court to permit the amendment of the order to include such a declaration at the suit of a non-party, in circumstances where neither of the actual parties to the litigation have sought to appeal. Nor is Mr Gray seeking to challenge the judge’s decision in its result, viz. whether the freezing order should be set aside and costs orders made against the claimants and Gibson Dunn. His only interest is in challenging findings of fact and reasons which led to those orders.
Nothing in Re W (a child) provides a route of appeal in respect of such matters. As Mr Kendrick submitted, article 8 provides procedural safeguards in terms of the right to a fair process: it does not provide a guarantee that a judge, having operated a fair process, will reach the correct conclusion on the substance of the case. The right to a fair process does not require that a litigant, let alone a witness, be afforded a right of appeal against a decision with which he disagrees on the substance (Footnote: 6). A court does not act unlawfully by getting the wrong answer on the merits. Such a conclusion is sensible: it is one thing to say that a witness whose professional reputation is at stake should not be criticised without warning and a fair opportunity to respond, but it would be quite another to allow a professional witness to appeal simply because he or she disagreed with a judge’s criticism of his or her evidence, professionalism or conduct.
I reject Mr Gray’s argument that he stands in some sort of special position because he was not a mere witness or third party, but was called by Flaux J in his supervisory capacity over officers of the court and that the judge made “final determinations” against Mr Gray as part of an inquisitorial process that the judge set in train and conducted. That mischaracterises the nature of the proceedings and Mr Gray’s involvement as a witness. As Mr Kendrick submitted, the proceedings were, and were only, the hearing of an application by Mr Boreh for particular relief against the claimants and Gibson Dunn. There was no inquiry or exercise of disciplinary jurisdiction against Mr Gray and no judgment or order was made in the exercise of the Court’s supervisory jurisdiction, as is apparent from the face of the Order appealed against.
Discretion
However, although for present purposes I proceed on the basis that, in the light of Re W (a child) and Mr Kendrick’s concession, there is jurisdiction in this court to grant permission to Mr Gray to appeal on the grounds that he was denied fair process which engaged his article 8 rights, I would refuse permission to appeal as a matter of discretion, both in relation to the procedural grounds 1 -3, and (if, contrary to my view, jurisdiction exists) in relation to the substantive grounds 4-12. My reasons for doing so are as follows.
First, I do not consider that Mr Gray has any real prospect of establishing on an appeal that the procedure adopted by the judge in relation to the determination of the allegations against him were “fundamentally” or otherwise unfair, in the respects alleged in his grounds of appeal. In other words, I do not consider that Mr Gray has any real prospect of establishing that Flaux J in fact conducted the hearing in such a way as to amount to an interference with his article 8 rights.
There is a complete air of unreality in Mr Gray’s contention that he did not know what claim he had to meet. First of all, as the partner having conduct of the case on behalf of the claimants, and as his numerous affidavits show, Mr Gray was himself closely involved at every stage of the application for a freezing order. This was not a case of a partner distancing himself from the minutiae of the day-to-day management of the litigation; on the contrary, he was the solicitor not only directing the strategy but also personally responsible for the production and presentation of the evidence and indeed, although he may dispute the extent of his involvement, in drafting an extradition request to the UAE authorities in Dubai for the extradition of Mr Boreh to Djibouti.
The allegations made by Mr Boreh against Mr Gray were clearly formulated in the fourth affidavit of Ms Jefferies, a solicitor in the firm of Byrne & Partners LLP, solicitors acting on behalf of Mr Boreh, dated 9 January 2015. That affidavit itself was served after Mr Gray, in his fourth and fifth affidavits dated respectively 11 November and 29 December 2014, in which he had attempted to explain his conduct in relation to his failure to draw to the court at the hearing in September 2013 (or indeed at any time prior to the further hearing on 13 November 2014) the fact that certain transcripts of intercepted telephone conversations had been mis-dated. Ms Jefferies’ fourth affidavit made clear that the allegations which Mr Gray had to face were:
that he had dishonestly concealed the fact that Mr Boreh’s conviction was unsafe because it was based on mis-dated transcripts and a false confession, including the allegation that Mr Gray had deliberately decided not to correct the judge’s understanding at the September 2013 hearing; and
that, after the freezing order had been granted, he dishonestly stated, or sought to create the impression, that he had not known that the transcripts were misdated at the time of the application.
There was no indication in Mr Gray’s six and seventh affidavits served in response to Ms Jefferies' affidavit that he was under any misapprehension as to the case which he was required to meet. In his sixth affidavit, for the first time, he set out a lengthy explanation for his conduct, by reference to a large quantity of previously unseen, and previously privileged, material. It was not surprising in those circumstances that Mr Boreh’s case against Mr Gray evolved to a certain extent in the light of that material. But I accept Mr Kendrick’s submission that, in the circumstances, Mr Gray was not entitled to be told in advance precisely what the lines of cross-examination against him would be, or how every point would be argued. The gravamen of the allegations against him and the type of arguments which were being deployed by Mr Boreh to set aside the freezing order, moreover, were clearly spelt out in Mr Boreh’s skeleton argument dated and served on 26 February 2015 shortly before the hearing began on 2 March 2015.
Although his counsel, in their speaking note responding to Mr Boreh’s skeleton argument, complained that Mr Boreh’s skeleton argument contained new allegations interweaved with the old, the reality was that such development as there was of Mr Boreh’s case, largely arose as a result of the disclosure of the new materials by Mr Gray and the detailed explanation of his conduct which he had given. It was perfectly clear what criticisms he faced and, unsurprisingly, despite the complaint and the skeleton argument, no application was made at any stage of the hearing by Mr Simpson on behalf of Mr Gray to adjourn the proceedings.
Nor am I impressed by the argument that Flaux J “made numerous findings of fact which were not pleaded or put to Mr Gray, in relation to which disclosure was not given, witnesses were not called and which Mr Gray had no adequate opportunity to meet”. It is apparent from the judge’s detailed and careful judgment that he was meticulously fair in his assessment of the evidence in relation to the alleged dishonesty of Mr Gray. It was legitimate for the judge to make findings of fact irrespective of whether they were points which had been relied upon by Mr Boreh as one of the grounds in his application. On analysis of the transcripts, it is clear that Mr Gray had every opportunity to deal in the course of his evidence with those aspects of the evidence in relation to which the judge made adverse findings against him, notwithstanding they were collateral matters which did not form the primary focus of Mr Boreh’s grounds for setting aside the freezing order. Even if the judge had been wrong, for example, to conclude that Mr Gray had no honest basis for saying that it was “widely known” that there had been an explosion on 3 March 2009, such a finding could not undermine the judge’s basic conclusions in relation to Mr Gray’s dishonesty, which justified the setting aside the freezing order.
Likewise, the argument that the judge reached conclusions adverse to Mr Gray in the absence of privileged documents and testimony from other witnesses, does not stand scrutiny. In his sixth affidavit, which, with the consent of the claimants, exhibited a large number of privileged documents “relevant to the issue of [Mr Gray’s] honesty” which had previously not been exhibited, there was no suggestion that other documents which might exonerate him had been omitted on privilege or other grounds. Nor is there any substance in the argument that evidence from other witnesses would have resulted in the judge reaching a different conclusion. Indeed, Mr Gray was offered the opportunity to apply for other witnesses to be called, but did not proceed with any application to that effect.
Mr Gray’s principal complaint as to the substance of the judge’s findings presented on the appeal before us was that, by parity of reasoning, in circumstances where the judge had not been prepared to find that the claimants’ leading counsel, Mr Qureshi QC, was dishonest, there was no basis for finding Mr Gray dishonest. Again I reject that argument. The judge was perfectly entitled to reach the conclusion that Mr Gray had behaved dishonestly, and that, as a result, the freezing order should be set aside, irrespective of any need to make any findings to similar, or different, effect in relation to Mr Qureshi, whose knowledge and state in mind had not been investigated. The judge was entitled to conclude that the latter’s state of mind had not necessarily been the same as the former’s.
Contrary to Mr Gray’s submissions, this is a very different case from the position in Re W (a child). This is not a case where it is obvious, or, in my view even remotely discernible, from the face of Flaux J’s judgment, that he conducted the hearing in a procedurally unfair manner. Even if more detailed argument on an appeal might, contrary to my view, persuade this court that such had indeed been the case, there is no possibility of Flaux J’s judgment being redacted in such a way as to excise references to Mr Gray’s dishonesty or to “rewrite” the judgment, so as to base it on a mistaken, but honest, misleading of the court.
Second, even if, contrary to my view, it were realistically arguable that Flaux J had conducted the hearing of the application unfairly so far as Mr Gray were concerned, so as to interfere with his article 8 rights, as a matter of discretion it would, in my judgment, be wholly inappropriate in the circumstances of this case to afford Mr Gray, who was not a party to the proceedings, a remedy by way of an appeal to this court to challenge the decision reached by Flaux J, after a full evidentiary hearing, that Mr Gray had been dishonest. Not only has no actual party to the proceedings any interest whatsoever in such an issue being litigated, since neither the claimants nor Gibson Dunn have sought to appeal Flaux J’s interlocutory decision that the freezing order should be set aside, but, most importantly, the trial of the main action itself has concluded with the claimants’ claim against Mr Boreh being dismissed. The litigation as between the claimants and Mr Boreh is over, the claimants having failed to obtain permission to appeal.
In such circumstances, the provision to Mr Gray of a right of appeal to this court, potentially with a consequent remission to the Commercial Court for a re- hearing of the dishonesty issue, as a means of remedying that interference, would in my judgment be contrary to the rights of the actual parties to those proceedings pursuant to article 6.1 of the Convention and common law, to have their civil disputes determined within a reasonable time, in a fair manner and in accordance with the law, as laid down in the relevant rules of court. Article 8 expressly permits interference by a public authority with an individual’s exercise of his article 8 rights “in accordance with the law …… or for the protection of the rights and freedoms of others”. That means that this court, in considering whether any remedy of an appeal should be afforded to Mr Gray (on the assumption that the hearing before Flaux J indeed involved an interference with his article 8 rights), has to balance the respective rights of Mr Gray on the one hand and those of the actual parties to the litigation on the other. In my judgment, in this case, any such balancing exercise comes down squarely in favour of the latter. They are entitled to finality in their litigation, within a reasonable time, and not to be subjected to further appeals at the suit of a non-party, with the consequent risk as to costs, merely on the basis of Mr Gray’s contention that the process was unfair to him as a witness and that the judge came to the wrong conclusion on the totality of the evidence. Even if they were not minded to participate in any such appeal, the court would need to have regard to the consequences, so far as they were concerned, of upsetting any finding of fact. In any event it would be highly unsatisfactory for there to be a one-sided appeal.
In reaching this conclusion, I take into account the fact that Mr Gray’s professional conduct is the subject of disciplinary proceedings before the Solicitors Disciplinary Tribunal, which currently stand adjourned pending this appeal. He will have an opportunity to vindicate his professional reputation at that hearing. He will have a proper opportunity to challenge what he claims are the wrong and unfair evidential conclusions reached by Flaux J as to his knowledge and lack of honesty. Rule 15(4) of the Solicitors (Disciplinary Proceedings) Rules (2007 No. 3588) provides:
“(4) The judgment of any civil court in any jurisdiction may be proved by producing a certified copy of the judgment and the findings of fact upon which that judgment was based shall be admissible as proof but not conclusive proof of those facts.”
Thus it will be open to Mr Gray to adduce evidence before the Solicitors Disciplinary Tribunal to challenge the conclusions reached by Flaux J. It will be open to him to contend that the process adopted by Flaux J was unfair to him because it did not provide him with a proper opportunity to meet the allegations against him or to produce the entirety of the relevant evidence. None of the views expressed by this court as to those matters will be binding on the Solicitors Disciplinary Tribunal. The Tribunal, as Mr Simpson submitted, will have the power to call for privileged materials. In my judgment that is the appropriate forum for Mr Gray to defend his professional reputation; a non-party appeal to this court is not an appropriate forum.
Disposition
Accordingly, in my judgment, even if this court does have jurisdiction to entertain an appeal by Mr Gray in relation to the procedural and/or substantive grounds set out in his notice of appeal, I would refuse permission to appeal.
Finally, although every case depends on its own facts, I express my concern that to permit a non-party witness in a commercial case of this type to exercise an independent right of appeal, in which he is free to challenge adverse factual findings made against him by a first instance judge, merely on the grounds that such findings have reputational consequences for him, has the potential to lead to highly undesirable satellite litigation. That in my judgment would be likely to waste court resources contrary to the interests of other litigants and to bring the administration of justice into disrepute.
Lord Justice Briggs:
I agree.