Lehram Capital Investments Ltd, R (on the application of) v Southwark Crown Court & Anor

The legal principles at play in this case are not especially controversial and the following sections have been mainly (but not entirely) adapted from the parties’ Skeleton Arguments. I have also incorporated material from elsewhere.

A party to criminal proceedings is entitled to a fair hearing, which encompasses various requirements including: an unbiased tribunal (which means one that is not actually biased and one that does not have the appearance of bias); being made aware of the allegations s/he (or it) has to meet; and a fair opportunity to be heard in relation to them. There are many decision to such effect: the Claimant cited Kanda v. Government of Malaya [1962] AC 322, 337; Re Hamilton, re Forrest [1981] AC 1038, 1045; R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531, 560; and R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841, [87]. Fairness means fairness to both sides.

What fairness requires is always fact and context specific. In Lloyd v McMahon [1987] AC 625, 702, Lord Bridge said:

“The so- called rules of natural justice are not engraved on tablets of stone: to use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates.”

In Doody, p560, Lord Mustill said:

“What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

The Claimant rightly submitted where it is alleged that a lower tribunal has acted in breach of the rules of fairness or natural justice, the court’s task is not to review the reasoning of the tribunal on Wednesbury principles, but to make its own independent judgment of whether what was done was fair: R (Mahfouz) v General Medical Council [2004] EWCA Civ 223, [19]; R (Osborn) v Parole Board [2014] AC 1115, [65]. That is the overall question I have to answer in this case.

In doing that, I bear in mind that the first decision I am concerned with, namely the Court’s decision not to adjourn, was a case management decision. Generally speaking, therefore, a generous approach to the decision of the lower court is required, and I cannot interfere merely because I would have reached a different decision. That is made clear in the cases on adjournments I will discuss later. For now, in Broughton v Kop Football (Cayman) Ltd (Permission to Appeal) [2012] EWCA 1743, [51], Underhill LJ said:

“51.

Case management decisions are discretionary decisions. They often involve an attempt to find the least worst solution where parties have diametrically opposed interests. The discretion involved is entrusted to the first instance judge. An appellate court does not exercise the discretion for itself. It can interfere with the exercise of the discretion by a first instance judge where he has misdirected himself in law, has failed to take relevant factors into account, has taken into account irrelevant factors or has come to a decision that is plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree. So the question is not whether we would have made the same decisions as the judge. The question is whether the judge's decision was wrong in the sense that I have explained.”

This approach was approved by Lord Burnett of Maldon CJ in R (Michael) v The Governor of HMP Whitemoor, The Director of High Security Prisons v The County Court at Oxford [2020] 1 WLR 2524. [56]:

“56.

This court will interfere with a case management decision of a trial judge only in exceptional circumstances. It is well established that a case management decision will not be interfered with or reversed by appellate courts unless it was, as Lord Neuberger put it in Global Torch Ltd v Apex Global Management Ltd (No 2) [2014] UKSC 64 (approving of the test in Broughton v Kop Football (Cayman) Ltd [2012[ EWCA Civ 1743, ‘plainly wrong in the sense of being outside the generous ambit where reasonable decisions-makers may disagree’.”

The potency of this principle– and the potential consequences of not complying with a court order - is illustrated by the Global Torch case. The Supreme Court upheld the decision of the Court of Appeal, which resulted in the defendant not being able to maintain a defence to a claim for $6 million solely because he had failed to comply with the court’s order that he sign a document. Justifying this outcome, Lord Neuberger said at [23]:

“23 … The importance of litigants obeying orders of court is self-evident. Once a court order is disobeyed, the imposition of a sanction is almost always inevitable if court orders are to continue to enjoy the respect which they ought to have. And, if persistence in the disobedience would lead to an unfair trial, it seems, at least in the absence of special circumstances, hard to quarrel with a sanction which prevents the party in breach from presenting (in the case of a claimant) or resisting (in the case of a defendant) the claim. And, if the disobedience continues notwithstanding the imposition of a sanction, the enforcement of the sanction is almost inevitable, essentially for the same reasons. Of course, in a particular case, the court may be persuaded by special factors to reconsider the original order, or the imposition or enforcement of the sanction.”

It follows, and it is obvious in any event, that parties to litigation have duties. In criminal cases these are largely contained in the Criminal Procedure Rules (Crim PR), as well as in the common law, and the Claimant was subject to them. The fact that at times the Claimant was not legally represented did not lessen its obligations to comply with the rules and the Court’s orders: Barton v Wright Hassall LLP [2018] 1 WLR 1119, [18]. In fact, as set out in the SGD at [6]-[28], the Claimant did have legal representation for parts of the appeal, and so had access to advice about its duties.

In furtherance of the overriding objective in Crim PR r 1.1 (to deal with cases justly), Crim PR r 1.2 provides (emphasis added):

“The duty of the participants in a criminal case

1.2.

(1) Each participant, in the conduct of each case, must-

(a)

prepare and conduct the case in accordance with the overriding objective;

(b)

comply with these Rules, practice directions and directions made by the court; and

(c)

at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective.

(2)

Anyone involved in any way with a criminal case is a participant in its conduct for the purposes of this rule.”

In R (Hassani) v West London Magistrates Court [2017] 3 Costs LR 477, [11]-[12], in a judgment with which Garnham LJ agreed, Irwin LJ commented upon this aspect of the Crim PR:

“11.

Time wasting, extension of hearings and taking hopeless points in the hope of wearing down an opponent or the court are neither proper nor legitimate ways in which to conduct a case, for a party or for a party’s lawyers. Courts must be aware of such behaviour and employ firm case management to prevent it.

12.

Each participant in a case has the obligation set out in CPR 1.2(1)(c): ‘At once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective.’ That means, for example, that if defence lawyers consider that a document is missing or service of a document has not taken place, their obligation is to say so early. Not to say so early may hinder the overriding objective because it is likely to cause an adjournment which could be avoided, and thus prevent the case being decided ‘efficiently and expeditiously”. If the defence are going to suggest that some document or some piece of service is missing, they must do so early. If they do not, then it is open to the court to find that the point was raised late, and any direction then sought to produce a document or to apply for an adjournment may properly be refused.”

He continued at [18]:

“18.

This judgment is an intentional reminder to criminal courts that active case management using the Criminal Procedure Rules is their duty. Increased rigour and firmness is needed. This judgment can be cited pursuant to the Practice Direction (Citation of Authorities) [2001] 1 WLR 1001.”

Both passages were cited with approval by Sweeney J in R (DPP) v Sunderland Magistrates’ Court; R (Kharaghan) v City of London Magistrates’ Court [2018] 1 WLR 2195, [27], which concerned challenges to adjournments made by magistrates on a wrong factual basis. In relation to the second case, the problems in the magistrates’ court arose in part from a failure of communication between the prosecutor and defence because the defence solicitors did not have a cjsm email address, which is required for service of relevant documents. The defence solicitors complained the prosecution had not served relevant documents as they had been ordered to do. At [89], Sweeney J said that

“89.

On behalf of the claimant Mr Dye realistically accepted that, although it is not yet compulsory for defence lawyers to provide cjsm e-mail addresses to the CPS, the lack of such provision by the defence in the instant case made an undoubted contribution to the problems. Mr Dye also accepted (as was, or should have been, apparent during the hearing on 3 May 2017) that the defence had been at fault in not alerting the magistrates’ court at once to the prosecution's failure to serve and disclose by 20 March 2017; in not alerting the court as to the prosecution's apparent continuing failure thereafter to do so; and, finally, in not (as the date for the trial hearing approached) alerting the court to the fact that, in their view, the case was not ready for trial and why: see eg Crim PR r 1.2(1)(c) and 3.3(1), together with the Criminal Practice Directions 2015 Division I, “CPD I General matters 1A: The overriding objective”, paragraph 1A.2, and the passages from the judgment of Irwin LJ in R (Hassani) v West London Magistrates’ Court [2017] 3 Costs LR 477 cited in para 27 above.” Sweeney J continued at [112] that ‘although it appeared at the time that the prosecution had not complied at all with the order to serve and disclose by 20 March 2017, the claimant and his advisers had clearly failed to comply with their duties to bring that to the attention of the court at an early stage, and thereafter to warn the court about their consequent lack of readiness for trial’.

On the approach to be taken to applications for adjournments, the leading cases are Crown Prosecution Service v Picton [2006] EWHC 1108 (Admin) and Balogun v Director of Public Prosecutions [2010] 1 WLR 1915. They require a ‘rigorous’ approach to the reasons advanced for the adjournment: R (Director of Public Prosecutions) v Leeds Magistrates Court [2020] EWHC 3686 (Admin), [13], and other cases.

In Balogun, [10]-[12], the Court said:

“10.

This area of the law has been well trodden over a number of years. In R v Aberdare Justices ex p Director of Public Prosecutions [1990] 155 JP 324, Bingham LJ (as he then was) emphasised two principles in these terms:

‘10. First, a decision as to whether or not proceedings should be adjourned is, as counsel for the defendant rightly urged, a decision within the discretion of the trial court. It is pre-eminently a discretionary decision. It follows as a matter of undoubted law that it is a decision with which any appellate court would be very slow to interfere and accordingly would interfere only if very clear grounds were shown for doing so.

Secondly I wish to make it plain that the justices in this case are in no way open to criticism for paying great attention to the need for expedition and the prosecution's criminal proceedings. It has been said time and time again that delays in the administration of justice are a scandal, and they are more scandalous when it is criminal proceedings with which the court is concerned.’

11.

Those observations were followed by Lord Bingham CJ (as he became) in R v Hereford Magistrates' Court ex p Rowlands [1998] QB 110, at 127G:

‘It is not possible or desirable to identify hard and fast rules as to when adjournments should or should not be granted. The guiding principle must be that justices should fully examine the circumstances leading to applications to delay, the reasons for those applications, the consequences both for the prosecution and defence. Ultimately they must decide what is fair in the light of all those circumstances.

The court will only interfere with the exercise of the justices' discretion whether to grant an adjournment in cases where it is plain that a refusal will cause substantial unfairness to one of the parties. Such unfairness may arise when the defendant is denied a full opportunity to present his case. But neither defendants nor their legal advisers should be permitted to frustrate the objective of a speedy trial without substantial grounds. Applications for adjournments must be subjected to rigorous scrutiny.’

12.

Inefficiency is always to be challenged. In a pithy but entirely apposite observation in R (Walden and Stern) v Highbury Corner Magistrates' Court [2003] EWHC 708, Mitchell J observed (at paragraph 17):

‘Furthermore, these reasons were given in the absence of any 'rigorous scrutiny' of the application. The longer courts tolerate the sort of inefficiency which seems, in each of these cases, to be the explanation for the failure of the witnesses to attend court on the date fixed for the hearing, the longer it will continue. To tolerate it is to encourage it."

In Picton, the Court said at [8]-[9]:

“8.

The magistrates were referred to the relevant authorities. They concluded that the prosecution failure was unreasonable; that in accordance with R (Walden and Stern) v Highbury Corner Magistrates' Court [2003] EWHC 708 (Admin) the request for an adjournment should be subject to rigorous scrutiny; that in accordance with Essen v Director of Public Prosecutions [2005] EWHC 1077 (Admin) they should consider carefully whether it was right to rescue the prosecution from the consequences of its own neglect; that in accordance with Walden and Stern to do so would encourage such failings; that the interests of the accused and his witnesses had to be considered as well as those of the victim; that on any basis if they granted an adjournment there was likely to be significant delay before the trial could be completed; and, finally, that given the unreasonable failure of the prosecution and balancing the interests of the victim and the accused and the likely delay, it was not in the interests of justice to grant an adjournment until later that day or to a new trial date.

9.

In Essen this court considered the relevant law and it considered in particular the judgments of Lord Bingham in R v Aberdare Justices ex parte Director of Public Prosecutions (1990) 155 JP 324 (then as Bingham LJ) and in R v Hereford Magistrates' Court ex parte Rowlands [1998] QB 110 (then as Lord Bingham CJ). The following points emerge:

(a)

A decision whether to adjourn is a decision within the discretion of the trial court. An appellate court will interfere only if very clear grounds for doing so are shown.

(b)

Magistrates should pay great attention to the need for expedition in the prosecution of criminal proceedings; delays are scandalous; they bring the law into disrepute; summary justice should be speedy justice; an application for an adjournment should be rigorously scrutinised.

(c)

Where an adjournment is sought by the prosecution, magistrates must consider both the interest of the defendant in getting the matter dealt with, and the interest of the public that criminal charges should be adjudicated upon, and the guilty convicted as well as the innocent acquitted. With a more serious charge the public interest that there be a trial will carry greater weight.

(d)

Where an adjournment is sought by the accused, the magistrates must consider whether, if it is not granted, he will be able fully to present his defence and, if he will not be able to do so, the degree to which his ability to do so is compromised.

(e)

In considering the competing interests of the parties the magistrates should examine the likely consequences of the proposed adjournment, in particular its likely length, and the need to decide the facts while recollections are fresh.

(f)

The reason that the adjournment is required should be examined and, if it arises through the fault of the party asking for the adjournment, that is a factor against granting the adjournment, carrying weight in accordance with the gravity of the fault. If that party was not at fault, that may favour an adjournment. Likewise if the party opposing the adjournment has been at fault, that will favour an adjournment.

(g)

The magistrates should take appropriate account of the history of the case, and whether there have been earlier adjournments and at whose request and why.

(h)

Lastly, of course the factors to be considered cannot be comprehensively stated but depend upon the particular circumstances of each case, and they will often overlap. The court's duty is to do justice between the parties in the circumstances as they have arisen.”

I turn to the position of corporations in criminal proceedings. I am not concerned here with corporate criminal liability, but with the procedural question: How and by whom can a corporation be represented in criminal proceedings ?

The question arises because corporations are legal persons which have to act through natural persons. The position at common law was that a company had to be represented by counsel or solicitors or, by leave of the judge, some other person, usually a director: Charles P Kinnell & Co Ltd v Harding Wace & Co [1918] 1 KB 405, 413:

“As from its nature a company cannot appear in person, not having as a legal entity any visible person, it must appear by counsel or solicitor, or by leave of the judge some other person may be allowed to appear instead of the company to address the Court, which includes the examination of the witnesses and generally conducting the case. There is no limit or restriction imposed on the judge as to the persons whom he may allow, or as to the nature of the cases in which he may allow some other person to address him instead of counsel or solicitor for the company. It is left to his discretion …”

The position now is dealt with under statute and the procedural rules. In criminal cases, Crim PR r 46.1 provides:

“46.1.

- (1) Under these Rules, anything that a party may or must do may be done -

…

(b)

by a person with the corporation’s written authority, where that corporation is a defendant;

…

unless other legislation (including a rule) otherwise requires.”

This Rule does not in terms say how or in what form written authority is to be given, however the Notes state:

“Section 33(6) of the Criminal Justice Act 1925, section 46 of the Magistrates’ Courts Act 1980 and Schedule 3 to that Act provide for the representation of a corporation.”

Section 46 provides:

“The provisions of Schedule 3 to this Act shall have effect where a corporation is charged with an offence before a magistrates’ court.”

Paragraph 8 of Sch 3 provides:

“Subsection (6) of section 33 of the Criminal Justice Act 1925 shall apply to a representative for the purposes of this Schedule as it applies to a representative for the purposes of that section.”

Section 33(6) states:

“In this section the expression ‘representative’ in relation to a corporation means a person duly appointed by the corporation to represent it for the purpose of doing any act or thing which the representative of a corporation is by this section authorized to do, but a person so appointed shall not, by virtue only of being so appointed, be qualified to act on behalf of the corporation before any court for any other purpose.

A representative for the purposes of this section need not be appointed under the seal of the corporation, and a statement in writing purporting to be signed by a managing director of the corporation, or by any person (by whatever name called) having, or being one of the persons having, the management of the affairs of the corporation, to the effect that the person named in the statement has been appointed as the representative of the corporation for the purposes of this section shall be admissible without further proof as prima facie evidence that that person has been so appointed”.

Similar provision is made for civil cases in the Civil Procedure Rules. CPR r 39.6 provides:

“Representation at trial of companies or other corporations

39.6

A company or other corporation may be represented at trial by an employee if –

(a)

the employee has been authorised by the company or corporation to appear at trial on its behalf; and

(b)

the court gives permission.”

As to this, I said in my case management judgment in the present case ([2022] EWHC 3203 (Admin)), at [16]-[17]:

“16.

CPR Part 39 used to be accompanied by PD39A (since repealed), which provided at [5.2] and [5.3]:

‘5.2 Where a party is a company or other corporation and is to be represented at a hearing by an employee the written statement should contain the following additional information:

(1)

The full name of the company or corporation as stated in its certificate of registration.

(2)

The registered number of the company or corporation.

(3)

The position or office in the company or corporation held by the representative.

(4)

The date on which and manner in which the representative was authorised to act for the company or corporation, e.g. ________ 19____: written authority from managing director; or
________ 19____: Board resolution dated ________ 19____ .

5.3

Rule 39.6 is intended to enable a company or other corporation to represent itself as a litigant in person. Permission under rule 39.6(b) should therefore be given by the court unless there is some particular and sufficient reason why it should be withheld. In considering whether to grant permission the matters to be taken into account include the complexity of the issues and the experience and position in the company or corporation of the proposed representative.’

17.

Although the Practice Direction has been repealed, [5.2] is still helpful as to the sort of evidence a court would typically expect to see where an application is made for a company representative to appear for it in litigation before the High Court …”

From these provisions, it seems to me that what is required in both criminal and civil cases is a clear and unequivocal statement from a named individual (X), who is authorised to act on behalf of the company, that another named person (Y) may represent the company. Details of the company, eg its registered office and company number should be given. The authority of X to give that authorisation must also be explicitly spelt out, eg, by producing the relevant board resolution or other appropriate evidence of authorisation.

A single director of a company with multiple directors does not necessarily have authorisation to act on behalf of the company (a point I made during the hearing). In Lim v Ong [2023] EWHC 321 (Ch), [55]-[63], Bacon J said (emphasis added):

“55.

That nevertheless left the question of whether Mr Ong could represent GCPL at trial for the purposes of making submissions on this point. Mr Bailey contended that Mr Ong did not have authority to represent GCPL. Mr Ong confirmed that he did not seek to call any evidence on behalf of GCPL, nor did he wish to cross-examine the claimants' witnesses on the GCPL claims. He nevertheless submitted that he should be permitted to make oral and written submissions to the court during the trial as to the substance of the GCPL claims.

56.

It was agreed that I would not determine this point at the outset of the trial, but would leave this for closing submissions, and would therefore proceed to hear Mr Ong de bene esse during the trial as to any submissions that he wished to make on this issue, both on the procedural question of his entitlement to represent GCPL and the substantive issues raised by the GCPL claims.

57.

Having considered the submissions of both parties on this point, it is in my judgment clear that Mr Ong cannot represent GCPL at this trial.

58.

CPR r 39.6 provides that a company may be represented at trial by an employee, if the employee has been authorised by the company to appear at trial on its behalf and the court gives permission. As the Court of Appeal explained in Watson v Bluemoor Properties [2002] EWCA Civ 1875, §12, that rule deliberately introduced a greater measure of flexibility into the ability of companies to choose their representative, allowing a company to authorise an employee to do so, whether or not that employee is a director. Nevertheless, the requirement remains that the relevant employee must be authorised by the company in question. It is not open to the court to permit someone to represent the company who is not so authorised.

59.

In the present case, the two directors of GCPL are Mr Ong and (since January 2020) Mr Murphy. The GCPL shareholders' agreement provides, in clause 2.1:

"The affairs of the Company will be managed by the board of directors unless changed by a unanimous Directors' Resolution … Two (2) directors shall constitute a quorum for the transaction of any business at any meeting of the board of directors. At all meetings of the board of directors, every motion to be carried must receive a majority of the votes cast, subject to the provisions of subclauses 2.5 and 2.6. Unless otherwise agreed, board meetings will be held at the head office of the Company."

60.

Mr Ong confirmed on the first day of the hearing that he was not aware of any board resolution which authorised him to act for GCPL. Nor are the claimants aware of any means by which Mr Ong has been authorised to represent GCPL in these proceedings. That remained the position by the end of the trial: Mr Ong did not produce anything suggesting that he was authorised to represent GCPL. While he contended that, as a director, he should be entitled to represent the company, that is not enough where (as in the present case) the company has multiple directors, and where the provisions of the shareholders' agreement preclude a single director from acting unilaterally on behalf of the company.

61.

Mr Ong also pointed to the fact that both Cardium Law and Ince & Co had previously represented GCPL without any objection from the claimants. I do not have any details of the basis on which GCPL's former legal representatives took their instructions. In any event, however, a solicitor gives an implied warranty of authorisation to act, which does not engage the requirements of r. 39.6.

62.

For completeness, I note that there is a separate question as to the status of GCPL's pleaded case, in circumstances where a joint defence was filed by all six defendants, with the statement of truth signed by Mr Ong. Mr Bailey accepted that if he had now sought to strike out that defence in so far as it set out the position of GCPL, on the basis that it was produced without authorisation from the company, the question of whether such an application was barred by laches would arise. The claimants have not, however, brought any such application, so this question does not arise and the trial has proceeded on the basis (as set out above) that GCPL's defence is not struck out.

63.The formal position is, therefore, that while GCPL's defence stands, Mr Ong is not authorised to represent the company at the trial for the purposes of r. 39.6. Formally, therefore, GCPL was unrepresented at the trial. For the reasons given above, however, I permitted Mr Ong to make any submission that he wished to make in relation to GCPL. Having done so, my discussion of the GCPL claims below takes into account those submissions de bene esse. For the reasons set out below, those submissions do not make any difference to my conclusions on the GCPL claims.”

I turn to the legal principles concerning video links.

Section 51 of the of the Criminal Justice Act 2003 (as amended by s 53 and Sch 23 of the Coronavirus Act 2020) was in force in August 2021 (a new s 51 was inserted by s 200 of the Police, Crime, Sentencing and Courts Act 2022 with effect from 28 June 2022).

Section 51 in its August 2021 form provided:

“51 Live links in criminal proceedings

(1)

A person may, if the court so directs, take part in eligible criminal proceedings through -

(a)

… or

(b)

a live video link.

(2)

In this Part ‘eligible criminal proceedings’ means -

(a)

a summary trial,

(b)

a criminal appeal to the Crown Court and any proceedings that are preliminary or incidental to such an appeal …

(3)

A direction may be given under this section -

(a)

on an application by a party to the proceedings, or

(b)

of the court's own motion.

(4)

But the court may not give a direction for a person to take part in eligible criminal proceedings through a live audio link or a live video link unless -

(a)

the court is satisfied that it is in the interests of justice for the person concerned to take part in the proceedings in accordance with the direction through the live audio link or through the live video link,

(b)

the parties to the proceedings have been given the opportunity to make representations …

(4A) The power conferred by this section includes power to give -

…

(c)

a direction for a person who is outside England and Wales (whether in the United Kingdom or elsewhere) to take part in eligible criminal proceedings through a live audio link or a live video link.”

…

(4E) The court may rescind a live link direction under this section at any time before or during the eligible criminal proceedings to which it relates (but this does not affect the court's power to give a further live link direction in relation to the proceedings).

(4F) A live link direction under this section may not be rescinded unless—

(a)

the court is satisfied that it is in the interests of justice for the direction to be rescinded,

(b)

the parties to the proceedings have been given the opportunity to make representations,

(4G) A live link direction under this section may be varied or rescinded by the court of its own motion or on an application by a party; but such an application may not be made unless there has been a material change of circumstances since the direction was given.

(4H) If a hearing takes place in relation to the giving or rescinding of a live link direction under this section, the court may require or permit a person to take part in that hearing through—

(a)

…

(b)

a live video link.

(6)

In deciding whether to give or rescind a direction under this section the court must consider all the circumstances of the case.

(7)

Those circumstances include in particular—

(a)

in the case of a direction relating to a witness—

(i)

the importance of the witness's evidence to the proceedings;

(ii)

whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness's evidence;

(b)

in the case of a direction relating to any participant in the proceedings—

(i)

the availability of the person;

(ii)

the need for the person to attend in person;

(iii)

the views of the person;

(iv)

the suitability of the facilities at the place where the person would take part in the proceedings in accordance with the direction;

(v)

whether the person will be able to take part in the proceedings effectively if he or she takes part in accordance with the direction.

(8)

The court must state in open court its reasons for refusing an application for a direction under this section …”

This provision was considered in R v Kadir [2023] 1 WLR 532, to which the Interested Party in particular referred me. However, the overall position on live links, and the legislative changes over time, were more recently helpfully summarised by the Court of Appeal in R v Pierini [2023] EWCA Crim 1189, [40]-[48] (they are not controversial):

“7 December 2007 – 24 March 2020

40.

Section 51 of the Criminal Justice Act 2003 came into force on 7 December 2007. It made provision for live links in criminal proceedings. As originally enacted, it stated:

[Omitted]

41.

As originally enacted, section 51 did not permit a defendant to give evidence by live link That was explicitly excluded from the ambit of section 51(1) (‘other than the defendant’). Aside from section 51 of the 2003 Act, there was (prior to March 2020) no other provision which would have enabled a court to permit the applicant to give evidence by live link …

25 March 2020 to 27 June 2022

42.

The Coronavirus Act 2020 was a legislative response to the covid-19 pandemic. Its purpose was to enable the Government to respond to an emergency situation and manage the effects of a covid-19 pandemic: see paragraph 1 of the Explanatory Notes. It was passed, and (with certain exceptions) it came into force, on 25 March 2020. Sections 53-57 made provision for the use of video and audio technology in courts and tribunals. The policy reasons for these provisions were explained at paragraphs 92-93 of the Explanatory Notes:

‘92 The efficiency and timeliness of court and tribunal hearings will suffer during a covid-19 outbreak. Restrictions on travel will make it difficult for parties to attend court and without action a significant number of hearings and trials are likely to be adjourned. In criminal proceedings, the courts have a duty to deal with cases effectively and expeditiously and that includes making use of technology such as live video links telephone or email where this is lawful and appropriate. Video link technology is increasingly being used across the court estate enabling greater participation in proceedings from remote locations. The courts currently have various statutory and inherent powers which enable them to make use of technology.

93 The Bill amends existing legislation so as to enable the use of technology either in video/audio-enabled hearings in which one or more participants appear before the court using a live video or audio link, or by a wholly video/audio hearing where there is no physical courtroom and all participants take part in the hearing using telephone or video conferencing facilities.’

43.

Section 53, read with schedule 23, made temporary modifications to the Criminal Justice Act 2003 (‘the 2003 Act’), including section 51 of that Act.

44.

Section 51 of the 2003 Act, as in force at the time of the judge's ruling on 8 February 2022, provided:

[Omitted: set out earlier]

28 June 2022 onwards

45.

The provisions of the Coronavirus Act which temporarily modified section 51 of the 2003 Act were repealed with effect from 28 June 2022. From that date, the Police, Crime, Sentencing and Courts Act 2022 substituted a new version of section 51 of the 2003 Act. It introduced a requirement for a judge, when considering whether to make a live link direction, to take account of any guidance given by the Lord Chief Justice.

46.

The Lord Chief Justice issued guidance shortly after the new provision came into force. This included the following:

‘Application of statutory criteria

…

8.

Defendants: It may be in the interests of justice to allow or require a defendant to attend hearings (particularly preliminary hearings) by live link so as to avoid delays and disruption ... Pre and post court conferences between advocate and defendant may not be able to take place effectively by live link where such conferences are desirable a live link is less likely to be in the interests of justice.

…

15.

Witnesses: A live link may be used as a special measure under section 24 of the Youth Justice and Criminal Evidence Act 1999. Even when not used as a special measure, the court may allow a witness to give evidence by live link where that is in the interests of justice (for example to save a witness from a long journey to court where all parties agree the evidence can be given remotely, or to allow a medical expert witness (or any other witness) to give evidence without having to take the entire day off work). Where a live link direction is given for a witness, the witness must give evidence by the live link unless the live link direction is revoked (section 52(2), (4)).

…

Live link to connect participant outside the United Kingdom

18.

Where the participant is abroad, then (depending on the country concerned) the court will wish to consider whether a live link would risk damaging international relations so as to be contrary to the public interest. The factors to consider, and the checks that can be made, are set out in Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 00286 (IAC).

Risks of live links

19.

The court does not have the same level of control over those participating in court proceedings remotely that it does over those who are physically present in the courtroom. It follows that a live link potentially gives rise to risks that will need to be considered. This is not likely to be an issue for professional participants, but in some cases it may be an issue for others. Defendants or witnesses might misuse the remote access that is provided by a live link so as (for example) to record the proceedings or take screen shots that depict the jury or a witness. A witness giving evidence by live link from premises other than the court, might be subject to off-screen pressures that will not be evident to the court. If the participant is outside the jurisdiction then these risks may be greater. For the purpose of section 1 of the Perjury Act 1911, evidence from outside the United Kingdom by live link is treated as being made in the proceedings (section 52A(5)). It is unlikely that sanctions for contempt (eg putting screenshots on social media/breaching reporting restrictions) could in practice be imposed.’

47.

In R v Kadir [2022] EWCA Crim 1244; [2023] 1 WLR 532 the trial judge refused the defendant's application for a live link for a witness to give evidence from Bangladesh. His appeal against conviction was dismissed. At [33] Holroyde LJ said:

"In relation to an application for a live link for a witness who is in another country, it is necessary also to bear in mind the principle that one state should not seek to exercise the powers of its courts within the territory of another state without the permission (on an individual or a general basis) of that other state. It cannot be presumed that all foreign governments are willing to allow their nationals, or others within their jurisdiction, to give evidence before a court in England and Wales via a live link. In some states, it may be necessary for the UK to be asked to issue an international letter of request (‘ILOR’) to the state concerned. The guidance recently issued by the Lord Chief Justice, at para 18, explains this important point…

The judgment in Secretary of State for the Home Department v Agbabiaka [2022] INLR 304 explains that a request can be made to the Taking of Evidence Unit at the Foreign and Commonwealth Office to enquire whether it is aware of any diplomatic or other objection from the country concerned to the providing of evidence by a live link.

34.

Although that recent guidance had not been issued at the time of the trial, the judge specifically drew the attention of the parties to this issue and provided them with a copy of guidance issued by the Crown Prosecution Service (‘CPS’). That guidance, whilst obviously directed to prosecutors, included the following passage which was also relevant to defence representatives:

'Some countries will allow requests to be arranged and conducted through informal channels, through a police to police basis, or even via direct contact with the witness from the UK. However, in many countries, a direct approach to a voluntary witness is not permitted and an ILOR will be required to establish a live link at trial.

Many countries will rarely, if ever, make use of live link in criminal proceedings and will not have the necessary equipment. In these cases, it is vital that the prosecutor considers these issues at an early stage as it is probable that the request to set up a live link in such cases will take many months of planning. In some countries a live link will not be technically possible, although is possible that the requested state will allow the UK to supply the necessary equipment and expertise.'

…

36.

In addition to the potential for diplomatic objections, it is necessary in this context to bear in mind both the administrative burden on court staff which is likely to arise if a witness is to give evidence from another country via a live link and the risks which may arise [as explained at paragraph 19 of the Lord Chief Justice's guidance].’

48.

No steps had been taken to establish whether Bangladesh was willing to permit a live link of the kind sought. There had been no request or inquiry of any relevant authority in Bangladesh. This meant that the judge lacked vital information in deciding whether, in the light of the factors identified in the Lord Chief Justice's guidance, it was in the interests of justice for a live link direction to be made. As a result, the judge was right to refuse the application: see [45]-[49]:

"45.

These failures left the judge in a most difficult position. She was confronted in mid-trial with an issue of which no sufficient notice had been given, and for which no adequate or timely preparations had been made, and was asked to permit the giving of evidence from abroad via a medium which was not commonly used in criminal courts at the time.

46.

As we have said, the judge did have the power to make a live link direction … even if she had been fully informed as to her power, she had no sufficient basis on which she could possibly exercise it in the defendant's favour … we [cannot] accept the submission that the judge was able to, and did, make a proper assessment of all the factors listed in section 51 of CJA 2003. She had no information about the attitude of the Bangladeshi authorities…

47.

Finally, there was a dearth of information to enable the judge to assess the risks which might be involved in Samad giving evidence from Bangladesh, including any risk that he would be under any form of pressure from any other person. It does not appear there was even any clarity as to where precisely he would be when giving his evidence.

48.

In those circumstances, the judge could not properly have concluded that the preconditions of a grant of leave under section 51(4) of CJA 2003 —that it would be in the interests of justice to make a live link direction, and that the Crown had had a sufficient opportunity to make representations—had been satisfied. Her decision to refuse the application for a live link was therefore correct. We accordingly reject the defendant's first submission.

49.

Before leaving this first ground of appeal, we emphasise the need for early consideration and preparation of any applications—whether by the Crown or by the defence—for witnesses to testify from another country via a live link. The relevant statutory provisions and Crim PR must be complied with; appropriate steps must be taken to ascertain whether the foreign state concerned has any objection to a person within its territory giving evidence as proposed to a court in England and Wales; and the technical and practical arrangements must be tested in good time, so that alternative ways of adducing the evidence can be considered if necessary.’"

As I have explained the question for me is whether the Court’s refusal to adjourn – which was a case management decision - is vitiated by the sort of error which would properly permit me to intervene.

In considering this submission, it is important to look with care at: (a) the Chronology; and (b) that which the Claimant must have understood were the risks involved in the Court acting a conduit for the Interested Party’s submissions (an arrangement which the Claimant had demanded because of the alleged threats to its directors). Those risks were expressly set out in (A)-(D) of the order of 2 July, which I set out earlier.

By 2 July the Claimant, although by then unrepresented, had filed a number of Skeleton Arguments. From that date onwards, the Claimant knew the Interested Party’s response was due by 4pm on 6 August. The appeal bundle was to be filed by the same time. Those deadlines were set out in the order of HHJ Griffith of 2 July, which the Claimant obviously knew about, not least because Ms Sokolova was present by video link at the hearing when the substance of the order was read out by the judge.

Following the Claimant’s unsuccessful adjournment application of 22 July, by the Court’s order of 27 July 2021 (made administratively), the Claimant again knew that the Interested Party was going to reply to its Skeleton Arguments by 4pm on 6 August. In the event, there were a multiplicity of Skeleton Arguments and applications from the Claimant which the Interested Party had to respond to.

It is clear that by 29 July at the latest, the Claimant had received the 27 July order. That is because it filed submissions on that date taking issue with the application of s 33 of the Criminal Justice Act 1925 (partially correctly, as I shall explain later). It follows it must have received the order, and thus that it knew what the relevant deadlines were.

In due course, on 4 August, shortly before the deadline, the Interested Party requested a short extension for the service of the appeal bundle. The main reason for seeking the adjournment was the volume of material which the Claimant had filed.

The appeal bundle was filed one working day after the initial deadline, namely on 9 August. Paragraph 5 of the witness statement from Ms Gamon of the Interested Party’s solicitors said:

“5.

A bundle the subject of analysis in the Judicial Review is a bundle entitled ‘Appeal Trial Bundle’. I was a party to the assembly and service of the Appeal Trial Bundle for the purposes of the hearing of the conviction appeal in the Crown Court. It was intended to encapsulate for the Crown Court all of the relevant documents for the appeal. Pursuant to the order of the Crown Court dated 27 July 2021, it was due for service on Southwark Crown Court by 4pm on Friday 6 August 2021. However, by reason of the multiplicity of additional material served by or on behalf of the Claimant after 27 July 2021 it was not possible to complete the Appeal Trial Bundle by that deadline. It was served instead on the Court on the following Monday, Monday 9 August 2021, in readiness for the appeal which was due to commence on Tuesday 17 August 2021.”

The appeal bundle ran to 564 pages. It consisted very largely of material from the Claimant, and not new material from the Interested Party, as Mr Ashley-Norman explained to the Court on 17 August 2021. Only a small proportion was new material which the Claimant had not seen before. The SGD said there were 29 such pages. The Claimant disputed this figure, but the exact number does not matter. It was a comparatively small number of pages, albeit, as I said in argument, it was material which required consideration (as opposed to being, for example, just a collection invoices which could be flicked through quickly) I reject Ms Sokolova’s claim in her witness statement at [97] and [100] that ‘over 100 pages’ were new, and I understood Mr Jacobs not to press that figure.

For the reasons I gave earlier, the Claimant was under a duty to ensure that the Interested Party complied with the deadline for the service of the appeal bundle, whether it understood that to be 6 August per the order of 2 July, or 9 August. Whenever the deadline was, the Claimant was required by the Crim PR to raise the matter immediately with the Court once it believed the deadline had been missed. What was not reasonably open to the Claimant to do was for it to wait until virtually the eve of the appeal, and then complain about non-service and seek an adjournment.

However, that is what the Claimant did. The first time there is any evidence it raised the issue was an email timed at 11.27pm (I assume local time, some time behind London), probably about 5.27am on 13 August 2021 London time. That delay of a week was inexcusable and not in accordance with the Crim PR.

Paragraph 23 of the Claimant’s Response to the SGD says ‘the Claimant instructs that’ Ms Sokolova raised the non-service of the bundle in a phone call to the Court on 11 August. There is no independent evidence of that alleged call. In the absence of such evidence, I am unable to find that any such call was made. Given the Court forwarded the file to the Claimant on 16 August shortly after the Claimant requested it writing, it is likely, had a call been made on 11 August, as the Claimant now says it was, the file would have been forwarded then.

The Claimant certainly did not make any enquiry of the Interested Party’s solicitor. A phone call would have remedied the matter, and Mr Ashley-Norman said that had one been made, it would have been dealt with ‘in a moment’.

There was a particular need for vigilance by the Claimant, over and above that engendered by the Court’s unorthodox buffer role which, as I commented at the hearing, had the capacity to fail. It is the experience of most of us that sometimes emails do not arrive, eg, because of the size of attachments, or a mis-spelling of the recipient’s email address, or for other reasons. That risk meant the Claimant should have been alert to, and monitoring, its email inbox from the deadline on 6 August onwards. It might have been the case that the appeal bundle had been sent by the Interested Party to the Court on time, and just not arrived; or that it had been sent by the Court to the Interested Party on time, but again not arrived.

In short, knowing that the appeal was due for hearing imminently, and believing that the appeal bundle should have been filed by the Claimant by 4pm on 6 August (or else 9 August), the Claimant made no enquiry of the Court in respect of the missing file until 13 August (London time). The Claimant therefore failed to discharge the duty that had been identified in the order of 2 July to remain in contact with the Court, and that imposed on it by the Crim LR. The Claimant’s want of access to the appeal bundle was therefore almost entirely of its own making. It was not, as Mr Jacobs put it orally, ‘all the Court’s doing’.

Mr Jacobs said it would appear that HHJ Baumgartner’s response in the email of 16 August at 9.57 that the adjournment request was refused because HHJ Griffith had already dealt with matters was an error, because the adjournment was based on the late appeal bundle, which had only just surfaced as an issue. However, in my judgment it was not a material error. The question of whether to adjourn was considered afresh by the Court the following day on the proper basis. Criteria (b) and (f) in Picton therefore weighed strongly against an adjournment.

I do not accept that there was any prejudice to the Claimant caused by the relatively small number of pages of new material in the bundle. The appeal was essentially a re-run of the case in the magistrates’ court, and the Claimant therefore knew full well what the issues were and what the evidence against it was. It had had ample time to prepare for the appeal. The Claimant was sent the bundle at 15.15 on 16 August, which would have been the start of the working day where the relevant personnel were located. That gave it a full working day to absorb the small amount of new material (not two hours, as Ms Sokolova disingenuously claimed in her witness statement at [110]). It is clear from all the Skeleton Arguments and applications that it had a significant degree of legal expertise available to it. Applying the Picton principles, it was well within the Court’s proper discretion to refuse an adjournment. I deal below with the Court’s not allowing Mr Sokolova or Mr Rudyk to address it, but even if they had done so, I very much doubt the outcome would have been different.

Overall, I agree with how the matter was put orally by counsel for the Interested Party on 17 August:

“JUDGE BAUMGARTNER: Very good. I think first that we would consider the application to adjourn which came late. It was a renewed application yesterday evening and again I hoped it would have found its way to you.

…

MR ASHLEY-NORMAN: The respondent - the respondent’s approach to that application is as follows: ‘By virtue of the orders made on 2 July and 29 July, by your brother judge, His Honour Judge Griffith, the appellant was well aware that the respondent was to serve material on Friday 6 August. The appellant continued to serve material after our skeleton argument of Friday 26 July, and shortly before the date upon which we were to provide our response, we received 25 applications for witness summons and a further skeleton argument. As a result of that, our material was one working day late, arriving at this Court on Monday 9 August. The appellant well knew that that material was due to arrive before this Court. The appellant communicated with the Court on 10 August, so last week, making enquiries about CVP. At no point did the appellant say, “We haven’t received the material. Please could the Court forward the material to us, pursuant to the arrangement that we asked the Court to make”. The appellant deliberately did not seek out the material that it knew was due and was available to be provided to it, and it made a choice in order that it could make it’s application to adjourn’.

JUDGE BAUMGARTNER: Is your point that it is not new material- and the bulk of it is not new material anyway ?

MR ASHLEY-NORMAN: And the bulk of it is not new material in any event ..”

It follows that I reject Ground 1.

I am satisfied that the Court was correct to hold that the Claimant was not properly before the Court because no proper written authorisation had been given to Ms Sokolova, or anyone else, to represent the Claimant on the appeal. I set out earlier what the rules require, and those requirements were not satisfied.

By 17 August neither Ms Sokolova nor anyone else involved with the Claimant could have been in any doubt about what they were required to do to establish proper representation on the appeal. Mr Jacobs’ submission to the contrary was, with respect, not tenable. The issue of representation had been raised at an early stage in the appeal proceedings; Ms Sokolova had been aware of the issue on 2 July, if not earlier; and it was then provided for expressly in (vi) of the order of 27 July.

I note the following from the SGD, [65] et seq:

Despite all of this, if the Claimant had been in doubt about what was required, it could have asked the Court and would have been given the answer. It says it did so in the magistrates’ court enforcement proceedings later in 2021, and so it could have done so in the Crown Court.

The Claimant took issue in written submissions with the mention in [vi] in the order of 2 July of s 33 of the Criminal Justice Act 1925. As I said earlier, it was partially correct to do so. On its face, that provision is mainly concerned with arraignments. However, s 33(6) is applied in respect of magistrates’ courts proceedings under Sch 3 of the Magistrates Courts Act 1980 by [8] of Sch 3 (including, by [2(c)], entering pleas to trials on information) and, because the procedure of a Crown Court appeal broadly mirrors that of a trial on information, I think is of relevance to such appeals also. It makes the general point that someone needs to be ‘duly appointed’ to appear for a company in criminal proceedings. As I have said, s 33 is mentioned in the Notes to Crim PR r 46.1.

That said, it would perhaps have been better if the order had recited CPR r 46.1(1)(b), and the need: (a) for the representative to have written authority (my emphasis) to act for the corporation on the appeal from someone on behalf of the corporation; and (b) for the lawful basis on which that authorisation was given (ie, the relevant board resolution, etc) also to be set out. Nonetheless, as I have said, the position had been made clear in various ways, and the Claimant had the wherewithal to find out what it had to do.

I reject the suggestion that the various emails sent to the Court in August (in particular on 12 August at 11.27pm and on 16 August at 5.06am) from unnamed persons purportedly on behalf of the Company Secretary, and/or the Claimant’s directors, were sufficient authorisation to Ms Sokolova or anyone else to act on behalf of the Company on the appeal for all purposes. Mr Jacobs fairly accepted this in his oral reply. They primarily referred to Ms Sokolova (or someone) acting as a translator (‘translator/activist’) to read things out in English, and not as the Claimant’s representative, and they did not set out the authority the author of the email (or the person on whose behalf it was purportedly being sent) had to act on behalf of the Claimant. Further, as Mr Ashley-Norman observed in relation to the email of 11.27pm on 12 August, for example, it said the Claimant did not have a representative.

The 16 August email timed at 5.06am said to have been sent ‘on behalf of’ the Claimant’s officers stated:

“As of the date of this letter, the appellant has not been able to secure any representative, a contingent/pro bono UK qualified attorney nor UK barrister, to assist in this matter, therefore it appears the appellant will have to rely on the pro bono assistance of Maria Sokolova’s non-native English translation skills to read the statement of the appellant and to read the submissions presented on behalf of the Appellant.”

There are numerous problems with this. Who was the actual author of the email ? What was their capacity/authority ? Was that authorisation (such as it was) being given on behalf of all of the officers of the Claimant and if not, then which ones ? If so, did the officers who did not speak English know and understand what was being asserted on their behalf ? What was the officers’ authority ? Was there a board resolution ? If so, where was it, and when was it passed ? What statement was being referred to ?

I also reject the suggestion that some document along the lines of the letters of authorisation provided for the magistrates court in November would have been sufficient. Mr Jacobs said that something like these in August would have been ‘all it took to comply’ with the need for authorisation. I disagree. On their face, these letters emanated from two of the Claimant’s directors, Mr Vargas and Mr Rudyk. Mr Rudyk’s letter is in English even though he supposedly does not speak English (see below). Mr Vargas’ letter is in translation from Spanish. The letters said Ms Sokolova had been authorised to act for the company ‘before any courts in England & Wales since at least May 2021’. Mr Rudyk used sophisticated English constructions such as ‘including but not limited to Magistrates Court, Crown Court, Courts of Appeal, High Court and before any public or semi-public body she might consider appropriate’ The reasons for Ms Sokolova’s supposed authorisation and why it was specifically needed are not explained. The source of the directors’ authority was not set out. And the letters are contradicted by other evidence, not least from Ms Sokolova herself. In short, they raise more questions than they answer.

In her witness statement for this judicial review, Ms Sokolova referred a number of times to her dealings with court staff, and impliedly suggested that she had been accepted as the Claimant’s duly appointed representative. I do not accept that suggestion. It is quite clear that even as a late as 27 July the question of representation was still to be resolved. As set out above, the Interested Party accepted her as a conduit for communications for purely pragmatic reasons and without prejudice to its position about there having to be properly authorised representation for the Claimant on the appeal. The fact Court staff interacted with her is irrelevant.

I therefore conclude that up to and including 17 August, no-one had proper written authority to act on behalf of the Claimant for the purposes of the appeal, as required by CPR r 46.1(1)(b). It follows that the Claimant was not before the Court, and the Court was right so to hold.

I have not overlooked Mr Rudyk’s assertions in his statement of 29 November that (sic):

“1)

Should had I been provided with the videolink for the 17 August 2021 appeal hearing at Crown Court in the matter of Cyrith v Lehram, I would have connected, as I was ready and available to participate since July 2021.

2)

Should had I been provided with the videolink for the 17 August 2021 appeal hearing at Crown Court in the matter of Cyrith v Lehram, I would have clarified any concerns in relation to the authority of Maria Sokolova in relation to Lehram Capital and its members.

3)

Should had I been provided with the videolink for the 17 August 2021 appeal hearing at Crown Court in the matter of Cyrith v Lehram, I would have made certain representations on behalf of Lehram irrefutably evincing that the private prosecution Cyrith v Lehram is inappropriate”

However, given that an authorisation must be in writing, such ‘clarifications’ would not have solved the problem. Moreover, because Mr Rudyk was not the Claimant’s sole director, as I have said, proof of his authorisation to act on behalf of the company would have been required: cf Lim, [60].

I am reinforced in my overall conclusion by the doubts which surround exactly what Ms Sokolova’s role and status is or was. As I said earlier, she described herself as a ‘polyglot translator’, and as having had some legal or quasi-legal roles. There is mention in the papers of her having had involvement with Baker & McKenzie in Moscow. Mr Marshall, of the Interested Party’s solicitors, made a witness statement in this judicial review pursuant to [4] of the order of Linden J on 13 May 2022. He carried out internet research of public information about Ms Sokolova, which threw up many unanswered questions. He concluded at [38}

“38.

The evidence demonstrates a length, depth and nature of relationship that I consider to be devoid of any explanation from the Claimant and, accordingly, I do not consider the Claimant has clarified the relationship with the Claimant, as ordered.”

The status of Ms Sokolova remained in doubt when the matter came before me in December 2022: see at [9]-[13] of my judgment, where I said:

“ 9. In her witness statement Ms Sokolova said this:

‘127. I have witnessed how pursuant to the power of attorneys from Mr Saavedra and Mr Vargas jointly with the request and authorization from Lehram's members and officers, when in late May 2021/June 2021 the counsel acting for Lehram in the private prosecution Cyrith v Lehram demanded more fees which could not be satisfied, and Lehram and its members could not continue to instruct him, I took over assisting the officers of Lehram, and Lehram itself in relation to the private prosecution Cyrith Holdings v Lehram Capital as I speak multiple languages and the registered persons with significant control of Lehram who are also officers of Lehram do not speak any English.

Deepening the mystery, in her witness statement at [7]-[9], Ms Sokolova stated that she had in fact been duly authorised to represent the Claimant since 2017:

“7.

I was asked by the officers of Lehram (directors and secretary) to assist in all matters related to their interests in Lehram, in their capacity as officers of Lehram as well as in their capacity as registered persons with control of Lehram.

8.

In August 2017 I received powers from Mr Saavedra, Mr Vargas to represent them and represent Lehram before any public authority due to the trust relationship I have with them. Those powers were notarized in August 2017 and are valid until August 2022.

9.

Those powers allow me to act for them and for Lehram before any public entity, including any Court.”

As I commented during the hearing, this does not sit easily with the assertions on behalf of the Claimant in the run up to the appeal that it did not have a representative.

The notarised document itself has not been exhibited. If it exists, it is a mystery why it was not produced to Southwark Crown Court. If it had, it might have gone a long way towards ensuring compliance with (vi) of the order of 27 July. I note that it does not appear to have been relied upon in the Claimant’s SFG. I do not accept the explanation in the Claimant’s Response to the SGD, [32], that it has not been disclosed because it shows the location of the Claimant’s directors, who are in fear. It could have been disclosed in a redacted form, with any sensitive material removed, or dealt with in some other appropriate way.

This explanation is also at odds with [55] of Ms Sokolova’s witness statement:

“55.

Should the Court had shown any hesitation or concern in regard to me being authorized by the officers of Lehram and Lehram itself, a copy of the notarized power of attorney dated August 2017 and valid until August 2022, would have been shared with the Court, an email from one of Lehram’s directors would have been provided, or any other remedy would have been implemented to the satisfaction of the Court such as the under penalty of perjury letters of authority of Lehram’s directors seen in exhibit 1.”

Contrary to her understanding, as I have said, the issue of representation was very much in issue, and was expressly dealt with in (vi) of the order of 27 July. I do not consider Ms Sokolova could have been in any doubt about the position, or what she and the Claimant needed to do.

Adding to the confusion, the letters of authority in evidence purportedly from Mr Rudyk and Mr Vargas (another director of the Claimant) say Ms Sokolova had been authorised from May 2021 (not 2017, as she said) to act on behalf of the Claimant in court. The evidence about Ms Sokolova’s alleged authorisation is therefore contradictory.

Also, as I noted in my December 2022 judgment at [14] (sic):

“14.

On the morning of the CMC I received two documents from Ms Sokolova. One purported to be a Companies House form AP3 appointing her as the Claimant's secretary. It was accompanied by a 26-paragraph set of further submissions (which the Court had not asked for).. These said at [25]:

‘25. In addition to the above, the LiP Claimant would like to inform the Court that despite Ms Sokolova's reluctancy to be appointed as a co-secretary of Claimant due to the risks its supposes because Claimant is exposing Kremlin-originated corruption arriving to England and to the West, in order to save time to the Court and to the Parties during the 1 December 2022, Ms Sokolova agreed to become an officer (co-company secretary) of LiP Claimant (see enclosed) addition to being an authorized person/an emanation of the directors of Claimant Mr Rudyk and Mr Vargas (their proxy).’

The whole picture about Ms Sokolova is therefore totally unclear.

Equally unclear is whether the Claimant’s directors and Company Secretary, or some or all of them, speak English, a point I made during the hearing. There are various references in the papers to them not being able to speak English: see eg Ms Sokolova’s statement, [127]. However, as I have said Mr Rudyk wrote a letter of authority in English dated 20 October and gave a witness statement in English, dated 6 April 2023. This suggests he does speak English. He has also made two statements in translation dated 29 November 2021 and 10 March 2023, which suggests that he does not speak English. In her statement at [6] Ms Sokolova said Mr Saavedra the Company Secretary does not speak English, even though he has signed a statement in English (with his signature witnessed by Mr Vargas). I am therefore left not knowing what the position is. Mr Ashley-Norman therefore said that one needed to be sceptical about the Claimant’s evidence. I make clear that I do not place undue weight on this aspect of the case, but point it out as another illustration of the uncertainty surrounding the Claimant’s position.

For all of these reasons, the Court was entitled to – and in my judgment was correct to – conclude that the Claimant was not properly represented on the appeal before it as required by CPR r 46.1(1)(b), because there was no proper or adequate written authorisation appointing Ms Sokolova or anyone else to appear on its behalf as its representative. The Court was correct in substance when it said (sic):

“Even if Miss Sokolova or Mr Saavedra did report to appear before us today, or indeed any director of the appellant whether in person or by video link, we would refuse to g behind His Honour Judge Griffith’s clear direction six of 27 July 2021. Since that direction has not been complied with still to date, and the appellant does not appear before us by anyone else with such written authority, or by legal representation, we find that the appellant has failed to appear today for the hearing of this appeal.”

There is a degree of overlap between this ground and Ground 2, as the Interested Party observed at [62] of its SGD:

“62.

The second and third grounds are in fact a single ground. This is made explicit in the first particular of Ground Two, which avers at paragraph 66 that the Court ‘erred and acted unreasonably in dismissing the appeal…on the basis that the Claimant had failed to comply with paragraph (vi) of the Order…dated 27 July 2021’. The subsequent paragraphs address the Court’s failure to permit the Claimant to enter the hearing. This aspect is therefore considered compendiously. Furthermore, the appeal was not dismissed because of the failure to comply with direction (vi); rather the Court refused to permit Ms Sokolova or Mr Saavedra to appear because of this failure. The dismissal of the appeal was a consequence of the failure to appear.”

The nub of Ground 3 is therefore that the Court’s refusal to allow Ms Sokolova and others to take part in the hearing by video link resulted in procedural unfairness. This was the principal basis on which Linden J granted permission in May 2022.

In considering this ground of challenge, the starting point is that Ms Solokova and Mr Rudyk had not been authorised as required by the Crim PR to represent the Claimant. It follows they were in the position of laypersons before the Court. It therefore had a discretion whether or not to hear them over the video link. I accept that discretion had to be exercised fairly and in the interests of justice. As to who would have appeared, the evidence is not entirely clear. Ms Sokolova in her statement at [112]-[113] just refers to officers and directors, but not specifically whom. Mr Rudyk has made a statement indicating what he would have done had he been linked in, but Mr Ashley-Norman said, I think with some justification, that his statement is ambiguous as where he was and whether he would have actually been able to link in.

Mr Ashley-Norman said that HHJ Baumgartner knew there were people ‘in the ether’, but not necessarily that Ms Sokolova and Mr Rudyk were waiting to be joined to the hearing (if indeed they were). He pointed me to the transcript of the beginning of the appeal, where the judge commented that his ‘concern in reading the papers, was that I do not know who they are dealing with. I have been dealing with people at the end of emails. I have not seen them’, and that there was no written authorisation for anyone to appear for the Claimant:

“JUDGE BAUMGARTNER: -and they do not have a corporate domain. And my concern is to make sure that this appellant, which is an English-registered company, is properly before the Court.

MR ASHLEY-NORMAN: Yes.

JUDGE BAUMGARTNER: And so in those circumstances, without any resolution, or without any written appointment of a representative for the purposes of these proceedings, or even without having a director before the Court-

MR ASHLEY-NORMAN: Yes.

JUDGE BAUMGARTNER: -the only people who appear to have been in the background, are a translator, I think, by the name of Miss-

MR ASHLEY-NORMAN: Maria Sokolova.

JUDGE BAUMGARTNER: -Sokolova and the company secretary who ordinarily could not [bind] the company.”

That said, the Interested Party had warned in its submissions opposing the adjournment application in late July of the consequences of the Claimant not appearing by a representative:

“28.

For the avoidance of doubt, if the Appellant chooses not to comply with the requirements of Section 33 and duly appoint Ms Sokolova (or another representative) to represent the Appellant, then the Respondent will object to

Ms Sokolova appearing as a representative of the Appellant.

29.

The Appellant has more than adequate time between the service of this Note and the appeal listed on the 17 August 2021 to attend to the appointment of Ms Sokolova, should the Appellant choose to do so.

30.

Should the Appellant choose not to appoint Ms Sokolova (or any other representative) prior to the trial, with the result that the Appellant is unrepresented at the trial, the Respondent will apply for the appeal to proceed in the absence of the Appellant.”

Mr Jacobs said his client did not see these submissions until 16 August. However, it was referred to in the recital of the 27 July order, and so the Claimant had constructive notice of them and could have asked for them (if it did not).

After much thought, I have concluded that there was a proper basis for the Court to exercise its discretion to decline to hear from Ms Sokolova or Mr Rudyk given the history of non-compliance by the Claimant with the need to duly appoint a representative, and the matters discussed in Kadir and Pierini. These show that the grant of a video link for someone overseas is not a formality but requires a careful assessment of the relevant circumstances. A court needs to know who it is dealing with, and as HHJ Baumgartner said at the beginning, he did not know this. As the Court explained, as well as no-one having been duly appointed to appear for the Claimant, the Court did not have the information it needed to exercise its power in the Claimant’s favour. The missing information included: the identity of the person(s) intending to appear; their locations; and the attitude of the foreign state concerned. This last matter could not be ascertained because of the Claimant’s failure to answer the Court’s questions. The authorities I have mentioned show that this is a ‘vital’ matter when considering whether to make a live link direction having effect abroad. The Claimant helpfully referred to the CPS’s Guidance on video links in its email of 16 August at 16.37pm, and the information which that guidance made clear has to be supplied, but it did not actually supply the required information.

There was, so far as I can see, no good reason why the Claimant could not have supplied it. It would not have placed anyone in jeopardy for the Claimant to have said, pursuant to the Court’s request, for example, that ‘the person we wish to appear is called X, X’s role is …. and they located in the United States’, and to have supplied any other information.. If necessary, a method of doing so without the Interested Party being aware of the location could have been fashioned.

I do not consider the fact that HHJ Griffith on 12 August had given an indication that a video link would be granted for representation makes any difference. Even assuming the email he sent to Court staff is to be treated as an order of the court (and I have not seen an actual order encapsulating it), the video link was expressly ‘for representation’, and as I have explained, the Claimant had no representation on 17 August. The order (such as it was) had therefore fallen away. The video link matter was therefore at large before the Court on that date.

In his submissions I was taken by Mr Jacobs to various passages from the hearing on 2 July, and things which HHJ Griffith had said, for example:

“You I am afraid, Lehram Capital have got to sort out representation in this country if they want to be represented because that is the appeal date, and I am afraid they will have to work to that in order to be represented if they want to do so. Otherwise, it may be you, if they ask you to come along and do it, and you and they will have to decide at some point what evidence they are going to put before the court about whatever it is that you are talking about.”

However, neither this, nor any of the other passages I was shown, amounted to – or could have amounted to – a statement by the judge that Ms Sokolova would be allowed to appear by a live link. The statements I was shown were made in the context of discussing who would represent the Claimant, rather than how they would do so.

I do not doubt that some judges might have given the Claimant ‘one last chance’ to put its house in order, despite all the chances it had already had by 17 August. But that is not the question. Ultimately, the question is one of fairness in what the Court did on the appeal. I do not consider that there was any unfairness in the Court declining to hear from Ms Sokolova or Mr Rudyk on that date, or in it not granting an adjournment to allow the Claimant to try and regularise its position, even for a short time.

The Claimant had had ample opportunities to sort out its position for months, but had steadfastly failed or refused to do so. The transcript of the hearing of 2 July in particular shows the Court acted with conspicuous fairness - Mr Ashley-Norman said orally ‘indulgence’ - towards the Claimant and Ms Sokolova, and took time to explain the position and then to draw up a detailed order. No-one objected to Ms Sokolova appearing on 2 July despite her lack of authorisation, for wholly understandable pragmatic reasons. The Court drew up a further order on 27 July. Notwithstanding that, the Claimant chose not to comply with the Court’s orders and requests for information, nor even to ask what it needed to do.

I was shown the transcript of the permission hearing before Linden J, where he postulated the Court on 17 August hearing from Ms Sokolova and granting a brief adjournment (‘… until 2 o’clock …’) to sort out the position. But the Claimant had had weeks, if not months, to sort out the issue of representation, and it was therefore not unfair not to allow more time, even on the speculative basis that a few hours would have resulted in proper authorisation for someone to act and any other issues to be ironed out.

Although the complaint now is that the Claimant was not provided with a reasonable opportunity to be heard, as the Interested Party points out, it appears from the correspondence that an opportunity to be heard in the conventional sense was not what was being sought by the Claimant. Rather, what the Claimant primarily wanted was the opportunity for a pro bono ‘translator/activist’ to read to the court the arguments it had filed, and also what was described as a ‘statement’. It is unclear what the statement would have contained, but the written arguments (which were in English) could be read by the Court for itself. Ms Sokolova, not being an English lawyer, could not therefore have provided any assistance if she had been permitted to appear by video link. I therefore struggle to identify any unfairness which resulted from her or Mr Rudyk not being heard. So far as I know, he is not an English qualified lawyer either.

Paragraph 80 of the SFG asserts:

“The Court erred in dismissing (or purporting to dismiss) the appeal due to procedural difficulties arising from the presentation of the Claimant’s case. Whilst there might have been procedural difficulties if the Claimant’s directors had sought to give evidence without enquiries having been made as to mutual legal assistance – those difficulties may not have proved insurmountable. Neither would any such difficulties have prevented Miss Sokolova or any other individual acting as a Mackenzie Friend and making submissions on the legal points which the Claimant had persisted in seeking to raise (for example in relation to abuse of process and the argument that the charges were time-barred and whether the Respondent had discharged the burden of proof in relation to the offences). The Claimant did not intend for Miss Sokolova to give hearsay evidence on behalf of the Claimant. Neither would such procedural matters have necessarily impeded the ability of Miss Sokolova to apply for an adjournment or put questions to the Respondent’s witnesses.”

With respect, this misunderstands the position. Ms Sokolova was not being put forward as a McKenzie friend, ie, someone who attends court with a party and provides some practical assistance, eg with papers, and moral support. She was being put forward as a translator and/or to read documents out. As a McKenzie friend, she could not properly have made any submissions or applications on the Claimant’s behalf, nor addressed the Court at all. Problems with mutual legal assistance would have arisen whether or the directors proposed to give evidence; they would have arisen because the proposed link was overseas. A mutual assistance request would inevitably have delayed matters.

I reject the arguments based on legitimate expectation. The ‘order’ of HHJ Griffith of 12 August (if that is what it was) was never received by the Claimant and so could not have founded any expectation. By 17 August the Claimant knew that the Court was raising issues about the overseas video link, and any belief it may have had arising out of things the Court may said at earlier times could no longer reasonably have continued. No legitimate expectation could have arisen in the Claimant that proceedings would take any course other than the course they did if they failed to comply with (vi) in the order of 27 July. Nothing in the correspondence or the other attempts by the Court to manage the unorthodox circumstances it had adopted at the Claimant’s request could have caused the Claimant to consider (vi) waived, or to consider that the express warnings contained in paragraphs A, B and C of the order of 2 July had been disapplied.

Overall, therefore, I do not consider that the Court’s decision not to allow Mr Sokolova or Mr Rudyk to address it was procedurally unfair.

This is the final step in the Interested Party’s argument. It submits that because the Claimant had not appeared on the appeal, it was open to the Court to dismiss it. I agree.

In R v Croydon Crown Court ex parte Clair [1986] 1 WLR 746, 749, the Divisional Court said:

“He relies, first, on section 79(3) of the Supreme Court Act 1981, which deals with appeals from magistrates' courts to the Crown Court. It reads:

“The customary practice and procedure with respect to appeals to the Crown Court, and in particular any practice as to the extent to which an appeal is by way of rehearing of the case, shall continue to be observed.”

So one then has to find what was the customary practice and procedure with respect to appeals to the Crown Court before 1981. One moves back and one comes to section 9(6) of the Courts Act 1971. That reads:

“Subject to any provision contained in or having effect under this Act, the transfer of appellate Jurisdiction to the Crown Court from quarter sessions shall not affect the customary practice or procedure on any such appeal, and in particular shall not affect the extent to which the appeal is by way of re-hearing of the case.”

That, of course, was the statute which abolished quarter sessions and therefore one has to see what was the practice and procedure on those appeals before 1972. It was not essential for a party to be present at his appeal at quarter sessions, although he was very well advised to be so if he wished his appeal to be heard and to succeed. The last edition of Archbold's Quarter Sessions, 6th ed. (1908), p. 254, begins with a passage dealing with the practice and procedure of quarter sessions. This was the book which was the vade mecum of everybody who had to appear, organise and preside at quarter sessions. It deals with appeals from magistrates. On p. 255 is this passage:

“If the parties to an appeal do not appear, by themselves or by counsel, when it is thus called on, the court will order the appeal to be struck out of the list, and they will not usually allow it to be restored to it without the consent of the opposite party, or a very strong and satisfactory statement on the part of the appellant, supported by affidavit, or the oath of witnesses present, accounting for his absence.”’

In its Skeleton Argument at [80] the Claimant raised a number of issues which it said had a bearing ‘on whether the Court acted with real or apparent bias’. I have already dismissed the suggestion of actual (real) bias. The law on apparent bias was recently summarised in H (A Child) (Recusal) [2023] EWCA Civ 860 (the principles are well-settled and not controversial):

“24.

In Re AZ (A Child) (Recusal) [2022] EWCA Civ 911, [2022] 1 WLR 78 at paragraph 54, this Court observed:

‘… case law has established that an appellate challenge to the conduct of a judge during a trial may take two forms. The first is a broad challenge to the fairness of the trial which is a matter for judicial evaluation. The second is an assertion that the judge gave the appearance of ‘bias’.

The test for apparent bias involves a well-established two stage process summarised by Leggatt LJ in Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468, [2018] BLR 341 at paragraph 17 in these terms:

‘The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased . It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased: see Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, paragraphs 102-103.’

25.

It has been stated in several cases since Porter v Magill that apparent bias means a prejudice against one party or its case for reasons unconnected with the merits of the case: Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117, per Scott Baker LJ at paragraph 28; Secretary of State for the Home Department v AF (No2) [2008] EWCA Civ 117, [2008] 1 WLR 2528, per Sir Anthony Clarke MR at paragraph 53; Bubbles and Wine, supra, per Leggatt LJ at paragraph 17. As Lord Wilson observed in Serafin v Malkiewicz [2020] UKSC 23, [2020] 1 WLR 2455 at paragraph 39, this definition of bias is ‘quite narrow’. For that reason, like Lewison LJ, whose judgment I have read, I consider it preferable to consider the matter on the more general level of whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the father would not receive a fair trial.

26.

A party may argue that a particular decision during proceedings was unfair. If so, his remedy is to seek to appeal against that decision. Alternatively, he may argue that the judge's treatment of his case was unfair over the course of the proceedings and that he should therefore recuse himself. In those circumstances, however, it is necessary to consider the whole of the proceedings to determine whether the judge's approach to the aggrieved party has been unfair. In Singh v Secretary of State for the Home Department [2016] EWCA Civ 492, [2016] 4 WLR 183, a case about apparent bias Davis LJ said, at paragraph 36:

"It is necessary to consider the proceedings as a whole in engaging in the objective assessment of whether there was a real possibility that the tribunal was biased.

In my judgment, it is also necessary to consider the proceedings as a whole when addressing an allegation that over the course of the proceedings the judge has treated a party unfairly.”

Two additional points mentioned in Bubbles & Wine, [18] are: (a) the fair-minded and informed observer is not unduly sensitive or suspicious, but neither is he/she complacent: Lawal v Northern Spirit Ltd [2003] ICR 856, [14]; (b) the facts and context are critical, with each case turning on ‘an intense focus on the essential facts of the case’: Helow v Secretary of State for the Home Department [2008] 1 WLR 2416, [2].

I have dealt with some of the points made by the Claimant already, eg [80(iv)] (‘The Court was aware that the Claimant’s representatives were seeking to attend the hearing via video link, but refused to permit entry to the Claimant and dismissed the appeal on the basis of the Claimant’s non-attendance’); and [80(x)] (‘HHJ Baumgartner stated: ‘There is no evidence before us that Miss Sokolova has authority to act for and on behalf of the appellant as its representative’ This was incorrect. There were letters before the court dated 12 and 16 August which were capable of having this effect.’) However, I have reviewed the matters raised in this paragraph and I am satisfied that alone or collectively they would not lead a fair-minded and informed observer to conclude that there was a real possibility that the Court which dismissed the Claimant’s appeal was biased.

I do not accept, for example, the contention at [80(vii)] that the Court ‘had brought about the situation whereby the Claimant felt compelled to apply for an adjournment’. I have found the fault was almost entirely that of the Claimant for not pursuing the matter timeously. Even if the appeal bundle was not forwarded to the Claimant on 9 August through oversight on the part of the Court staff (and I emphasise ‘if’ because I have no evidence about it), then that does not give rise to an appearance of bias on the part of the Court which dismissed the appeal. It was unfortunate (per [80(ii)] that the Court wrongly stated that an overseas video link was not permitted, however the Claimant rapidly set out the legal position by pointing to the amendments to s 51 made by the Coronavirus Act 2020, and the matter was then judged on its merits on the appeal. The Court did refuse an adjournment on the papers on 16 August for the reasons HHJ Baumgartner gave ([80(iii)], but then considered the matter again at the beginning of the appeal. He did say ([80(ix)] that the Court suspected that the Claimant retained lawyers when it suited, but he also said it did not influence the Court’s judgment, and I am not prepared to go behind that clear statement.

The bulk of the Claimant’s arguments under this heading relate to the Court’s failure to admit Ms Sokolova by video link, however for the reasons I have set out, the Court was entitled to take that course.

This application is therefore dismissed.

It follows that I need not deal with the Interested Party’s ‘no difference’ argument under s 31(2A) of the Senior Courts Act 1981, which Mr Ashley-Norman did not really press in any event. However, regarding adjournment and representation, it is perhaps worth noting the question of Ms Sokolova’s capacity and role had still not been resolved by the time of the hearing before Linden J in May 2022, nor before me in December 2022. Hence, granting the Claimant’s application for an adjournment in August for these matters to be resolved may well not have remedied the matter.