Bhamjee, Re an Application for Permission

J U D G M E N T

Monday, 14th July 2003

1. MR JUSTICE SULLIVAN: This is a renewed application for permission to apply for judicial review of a decision of the Legal Services Ombudsman. The Legal Services Ombudsman concluded, in summary, that the action taken by the Office for the Supervision of Solicitors in investigating a complaint by Mr Bhamjee against his former solicitors, Dillons, had been reasonable. I say "in summary" because the Legal Services Ombudsman set out his reasons for reaching that conclusion in a lengthy and detailed letter dated 12th December 2002. That is the decision letter which is under challenge in these proceedings.

2. However, the application for permission to apply for judicial review was not lodged until 29th April 2003. In response to that application, Collins J refused permission on the papers, observing that the claim was hopeless and there was no reason to extend time.

3. Before me, I asked Mr Bhamjee to provide an explanation as to why the application had been made late and why there could be said to be any arguable error of law in the decision of the Legal Services Ombudsman. He was not able to give me a satisfactory explanation upon either count. There are generalised assertions of discrimination against him on racial grounds, generalised assertions that the General Council of the Bar, the Legal Services Ombudsman and the Law Society had in some way been concealing matters, and a number of references to a failure to comply with an order that is said to have been made by a Deputy High Court in July 1988.

4. None of the matters to which Mr Bhamjee has referred provide any explanation as to why there was not a prompt challenge to the decision of the Legal Services Ombudsman dated 12th December 2002. It has to be remembered that that was the culmination of a lengthy complaints process. The Legal Services Ombudsman was considering how the OSS had dealt with a complaint about the complainant's former solicitors.

5. Even if the application had been made promptly, there is nothing in the papers or in any submission that Mr Bhamjee has made to me this morning that gives even the slightest hint that there might conceivably be any judicially reviewable error of law in the decision of the Legal Services Ombudsman dated 12th December 2002.

6. I quite appreciate that Mr Bhamjee has a number of grievances against other parties, but the issue in these proceedings is whether permission ought to be given for judicial review of a specific decision by the Legal Services Ombudsman. For the reasons that I have given, I endorse the view expressed by Collins J on the papers that the claim is hopeless and there is no reason to extend time. So for these reasons this renewed application is refused.

7. MISS COLLIER: My Lord, as I indicated earlier, I do have an application to make for costs in this matter. Could I start, my Lord, by handing up a copy of the letter that my solicitors wrote to Mr Bhamjee on 20th June and a copy of Mr Bhamjee's reply (_Handed).

8. MR JUSTICE SULLIVAN: Thank you. (_Pause) Yes, I think I have the flavour of that.

9. MISS COLLIER: My Lord will see that on 20th June my solicitors informed Mr Bhamjee that in the event that he did not withdraw his request within seven days they anticipated they would be instructed to seek both the costs of the oral hearing and also the proceedings generally to be assessed at the hearing on 14th July.

10. MR JUSTICE SULLIVAN: Yes.

11. MISS COLLIER: They also asked if he could clarify who was responsible for the acknowledgment of service. My Lord has had an opportunity to see Mr Bhamjee's reply to that, and particularly on costs at paragraph 34, that is at page 18 of the fax. Mr Bhamjee replied "You should not threaten me with the issue on costs".

12. MR JUSTICE SULLIVAN: Yes.

13. MISS COLLIER: It refers to his request for consent to amend the pleadings and says that we could give him consent to amend his pleadings, then he goes on to say "You must seek an order for costs against the General Council of the Bar and the Law Society".

14. MR JUSTICE SULLIVAN: Yes.

15. MISS COLLIER: Then goes on to explain that. Our application of course is for costs against Mr Bhamjee. My Lord will of course be aware of the provision in the practice direction that where a claimant is unsuccessful at an oral hearing to renew an application for permission costs will not normally be granted.

16. MR JUSTICE SULLIVAN: Yes.

17. MISS COLLIER: The precise terminology is that the court will not generally make an order for costs against the claimant. In relation to that, we say that this is an unusual case which takes it out of the normal run precisely because of the terms in which Collins J expressed his decision.

18. MR JUSTICE SULLIVAN: Yes.

19. MISS COLLIER: My Lord will recall that those terms were very emphatic. In my submission, there was really nothing that could reasonably have persuaded Mr Bhamjee that this was a suitable case for renewing the application orally, and of course my solicitors then made it extremely clear that they would seek costs if he did pursue that course of action.

20. MR JUSTICE SULLIVAN: Yes.

21. MISS COLLIER: If I may say so, the acknowledgment of service that was prepared by my instructing solicitors set out extremely clearly why his claim was quite unmeritorious. It dealt not only with the decision of 12th December, but also decisions in two other cases which they surmised he might be complaining about. Again, there is really nothing that could possibly have led Mr Bhamjee to suppose that it was reasonable to renew this application.

22. Those are my submissions on why this oral hearing falls outside the general rule that costs should not generally be granted.

23. MR JUSTICE SULLIVAN: Yes.

24. MISS COLLIER: As for the acknowledgment of service and previous work that was done, my Lord will of course be familiar with the case of Leach , which is referred to in the most up-to-date version of the White Book. I do not know if my Lord has a copy of the 2003 White Book. If not, perhaps I could hand up mine (Handed).

25. MR JUSTICE SULLIVAN: Thank you.

26. MISS COLLIER: It is at 54.12.5, my Lord.

27. MR JUSTICE SULLIVAN: Yes. I am familiar with the passage in fact. We have power to give costs. I am bound to say that one might well take the view that the costs up to and including preparing an acknowledgment of service might be regarded as one of the burdens of office if one is a public body, but the position might be different if, having had a very clear acknowledgment of service and a very clear indication from the judge on the papers, you then persist to an oral hearing, so it might be possible to isolate out the costs of the oral hearing and take the view that everyone is entitled to complain on paper. If they get a clear answer on the papers then they should drop the matter. If they go on, they do so at their peril. That might be a way of looking at the matter. It is relatively unusual to give costs at the paper stage. There has to be something pretty wrong. I know you would say there is something pretty wrong with this claim, but perhaps things more like deliberate concealment of facts that have to be put right by the respondent in an acknowledgment of service. That sort of thing quite often leads to awards of costs.

28. MISS COLLIER: My Lord, yes. In Leach the costs of the acknowledgment of service were awarded. My Lord will also be aware that subsequently there have been cases in which Leach has not been followed, but we would say that this is a prime case where Leach should be followed for precisely the reasons that my Lord anticipated. We would say that this claim form was so bad, and indeed so unclear, that the costs of the acknowledgment of service were considerably greater than they should have been because my solicitor and my client could not easily discern what the claim actually was, so that added to the costs of the acknowledgment in this case.

29. MR JUSTICE SULLIVAN: Yes.

30. MISS COLLIER: I understand that in a recent decision Collins J indicated that he had heard that both the Leach principle and the practice direction principle were to be determined by the Court of Appeal shortly, but I am afraid I do not have any information about what case is going to do that. At the moment the law is that there is power to award the costs of the acknowledgment and the oral hearing. I should add that, whereas in Leach Collins J indicated that there should be an indication ideally in the acknowledgment that costs would be sought, there was not in this case. Leach is in fact not a particularly well-known decision, my solicitors did not do that, but what they did do is make extremely clear to Mr Bhamjee what would happen if he pursued with his application for an oral hearing.

31. MR JUSTICE SULLIVAN: Yes. Have you got a breakdown? I have not seen a breakdown of the costs. What I really would like to know is what are the costs of today as opposed to the costs of the acknowledgment of service.

32. MISS COLLIER: Could I hand up the schedule since my Lord does not have it. Mr Bhamjee does have a copy, I understand, and it was served on him last week. You will see, my Lord, the costs of the hearing, attendances at hearing for the solicitors are set out and then counsel's fees. There would be additional costs involved in the preparation of a small bundle of documents that we have taken the precaution of preparing in case my Lord wished to see copies of any of the relevant complaints.

33. MR JUSTICE SULLIVAN: Yes.

34. MISS COLLIER: Those are the costs of the hearing which, in my submission, are reasonable, though of course it is always difficult to make submissions on counsel's fees.

35. MR JUSTICE SULLIVAN: This is just the hearing rather than the acknowledgment of service as well?

36. MISS COLLIER: My Lord, no, for attendances at hearing, counsel's fees, those are the costs of the hearing. The remainder, the attendances on client £525, attendances on opponent £262.50.

37. MR JUSTICE SULLIVAN: These are the acknowledgment of service?

38. MISS COLLIER: They are mainly the acknowledgment of service. There would be some additional costs on attendances on client and attendances on opponent, and also the costs of preparing the bundle, but those unfortunately are not separated out from the costs of preparing the acknowledgment.

39. MR JUSTICE SULLIVAN: Yes. The heading "Preparation", 3 hours, that is on the second page, is that preparation for this hearing?

40. MISS COLLIER: My Lord, no, it is not. If I just remind myself on that. That is drafting the acknowledgment of service by my solicitors with reference to the documents. Although I have already made the submission I know, I would reiterate that my solicitors's acknowledgment of service, in my submission, was extremely clear, and I hope would have been of assistance at all stages of the case, particularly in a case like this where the claim itself is so unclearly drafted, with respect.

41. MR JUSTICE SULLIVAN: Yes. Thank you very much. Mr Bhamjee, what do you want to say about costs?

42. THE CLAIMANT: They are aware that I am receiving public funds and they have got an order which was given on 23rd January 2000 before (inaudible). If they wanted to say to the court -- they would have written a letter to the court they would not have attended, come to the court. Now, section 51.7A and B of the Supreme Court Act 1981 applies because it is not the -- the omission is not on my part, the omission is on their part, and then there are some systems of appealing of leapfrog system because I have appealed to the Court of Appeal several times now and some -- I would like to have a leapfrog system to appeal direct to the House of Lords because I have exercised both civil and criminal and then you have not exercised the criminal law and so on, and then under the criminal law system I have got a right to appeal direct on a leapfrog system from the High Court to the House of Lords under the Administration of Justice Act 1960 and 69. I have got a right to ask. Even if you refuse to give me a certificate I can still go to the House of Lords with that point because I am saying that a crime has been committed and therefore the crime (inaudible) and so on, so I need this certificate whether you grant me leave to appeal direct to the House of Lords or not on a criminal point. Section 192B of the Supreme Court Act 1981 does apply and some of the decision letter which I wrote to them they are regarding three decision letters which were made by the Legal Services Ombudsman in June 1999 -- I mean June 2003. The time for appealing and making an application for this judicial review of these three decisions has not expired, but I was trying to say that these matters be consolidated so you could give me leave to amend my claim form so that I did not want to waste more time of the judges and so on. These three decisions which are made in June 2003, the time has not expired which includes the work which they have done, so I have to issue three separate claim forms against three separate decision letters. My application here was against three decision letters, one was made in 2001, the other was made in 2002, so there has been some misunderstanding on your part because my claim form was against three decision letters, not only one decision letter, and then when I have come here today I have asked that these other three decision letters made in June 2003 could be heard together, could be listed together so that it would come in properly. These three decision letters, the time has not expired so I have to issue -- it is your direction now whether I must issue --

43. MR JUSTICE SULLIVAN: Thank you very much, Mr Bhamjee. I do not think you have anything else you can tell me about the cost issue, have you?

44. THE CLAIMANT: What I am saying here is I am on public funds and so on. Section 51(7) A and B of the Supreme Court Act 1981 does apply so I was saying it is therefore the costs should be made against them and not me.

45. MR JUSTICE SULLIVAN: Yes, thank you.

46. In this matter Miss Collier applies for costs, not merely of this hearing but also the costs incurred by the defendant in responding to the claim in the acknowledgment of service.

47. The practice direction makes it clear that where the defendant does attend a hearing the court will not generally make an order for costs against the claimant, but of course there are exceptional cases.

48. In the present case the acknowledgment of service was full and careful and the judge's refusal of permission on the papers was emphatic. The claimant ought to have thought long and hard about whether or not it was justified to renew the application at an oral hearing. His concentration should have been enhanced by reason of the fact that the defendant's solicitors sent a letter on 20th June, reminding him of the terms of Collins J's order and saying that they considered that the request for an oral hearing was unreasonable and a waste of costs. The letter warned that if the claimant did not withdraw the request within seven days then they anticipated being instructed to seek costs of the oral hearing and also of the proceedings generally.

49. For the reasons set out in the judgment that I have just given, it is plain that this claim was not merely out of time but it is quite hopeless. No arguable error of law has been disclosed on the part of the Legal Services Ombudsman. The claim should never have been made, much less should it have been renewed.

50. So far as the application for costs is concerned, against that background I take the view that the costs of preparing the acknowledgment of service should not be awarded against the claimant. As a general rule, public bodies are expected to bear those costs and I see no reason to depart from that general position. But, the position having been made perfectly clear to the claimant by the acknowledgment of service and the order of Collins J, he should not have persisted in this application to renew, certainly after receiving the clear warning from the defendant's solicitors in the letter of 20th June this year.

51. For those reasons, therefore, I distinguish between the costs of this renewal hearing and the costs leading up to the renewal hearing. The overall costs are £4,849.81, but the costs of this hearing are, in broad terms, £1,500 plus VAT. In my judgment, this is an appropriate case to award the defendant the costs of this wholly unnecessary renewal hearing. Therefore, the claimant is to pay the defendant's costs of this hearing. Those costs are to be summarily assessed in the sum of £1,500 plus VAT.

52. MISS COLLIER: My Lord, I am very grateful. I hope it will not appear to be too demanding to point out that the attendances at hearing by the solicitors are listed on the statement at £90.

53. MR JUSTICE SULLIVAN: I had noted that and taken it into account in rounding.

54. I order that the transcript of my judgment in these proceedings be supplied to the Divisional Court for the hearing by the Attorney General for interim vexatious litigant relief on 30th July.

55. THE CLAIMANT: Leave to appeal to the House of Lords?

56. MR JUSTICE SULLIVAN: I cannot give you leave to appeal to the House of Lords. If you are asking for leave for permission to appeal to the Court of Appeal, I refuse you, Mr Bhamjee.

57. THE CLAIMANT: What I'm trying to say here is that I'm trying to appeal on a leapfrog system because Collins J's order says there are --

58. MR JUSTICE SULLIVAN: Mr Bhamjee, even if I had power to allow you to appeal to the House of Lords I would refuse you, so I think you better take that up on 30th July if you want to.

59. THE CLAIMANT: I mean, the petition for leave to appeal -- if an order is drawn then I could --

60. MR JUSTICE SULLIVAN: Thank you very much, Mr Bhamjee. The case is concluded.