Perotti v Iliffes Booth Bennett (A Firm) & Ors

This is yet another Judgment from the Courts, which starts with the phrase, “ This is another Judgment in respect of the lengthy and complicated proceedings brought by Mr Perotti ”. Indeed on the Monday before the commencement of the hearing before me, Mr Perotti was involved in making no less than twenty-two applications in the Court of Appeal, all of which I understand from him failed. All of the applications arise out of the last Will of Lorenzo Perotti (“Lorenzo”) who died on 11^th April 1984 having made various dispositions under a Will dated 23^rd August 1983.

The Will appointed a Mr Impanni to be the executor and trustee of the Will. After various minor bequests and the devise of his freehold property, 70 Suffolk Road, North Harrow, Middlesex, to his sister Angela Salvi, he devised and bequeathed the residue of his estate to be disposed of as if he had died intestate.

The testator’s signature to the Will was witnessed by Mr Impanni and Mr Watson a solicitor.

Mr Impanni did not take any grant of representation. On 31^st July 1984 a grant of letters of administration was made in favour of a Mr Rudolph, a solicitor and partner in Mackrell Turner Garrett as attorney/administrator. He died on 25^th August 1985, and a further grant dated 4^th February 1986 was made to Mr Watson (he being a former partner of Mr Rudolph’s) again as attorney/administrator.

At first sight the estate appeared to be a relatively modest estate, with little difficulties in administration. However, it transpired that Lorenzo had £700,000.00 (Seven Hundred Thousand Pounds) in undisclosed Swiss bank accounts. Mr Impanni knew about them. He told Pepino, one of the beneficiaries in April 1984 at Lorenzo’s funeral and he in turn told Mr Perotti. He and Pepino decided not to tell Mr Rudolph or Mr Watson about them, nor did Mr Impanni make any effort to tell them. The first indication Mr Rudolph knew about any monies in Switzerland was as a result of an attendance note dated 25^th July 1984. Ultimately in October 1984 he was given some concrete information, by way of an anonymous telephone call tip off. By this time Mr Perotti had resolved to tell the Taxes Office about the money and had notified certain people of his intention to do so. As a result, Mr Rudolph wrote on 22^nd October 1984 to the Swiss bankers for information as to the accounts.

The circumstances of the revelation are one of the many instances of the unattractive (to put it mildly) conduct of Mr Perotti. I refer to the Judgment of Rimer J in the substantive action dated 26^th March 1997 (page 13). Mr Perotti made approaches to the family with a view to arriving at a negotiated arrangement, and warned then that if they would not cooperate he would disclose the Swiss funds to CTO, and in his words “ he would go legal ”. The family did not cooperate, so he did “ go legal ” and declared the funds. To quote from the Judgment of Rimer J:-

“ He was not prepared to advise Mr Rudolph of them because he considered Mr Rudolph had insulted him and was not prepared to deal further with him. He went instead straight to the CTO. His decision to do so was not motivated by pangs of honesty, but by desire for revenge towards those who would not yield to his demands ”.

Similar is his attitude towards the litigation. Although before me he submitted that he has lost an opportunity to negotiate a settlement of the main action, it is quite clear that no such settlement would ever have taken place. I refer again to the judgment of Rimer J dated 18^th April 1997 on costs (page 15):-

“ I am prepared to settle, out of court, for a sum of £200,000.00 … to include penalties for attempting to defraud the Perotti’s of their full inheritance, failing to discharge your lawful duties as executer, stress and anxiety as a result etc etc.

Please take express notice:-

I was very disappointed to learn of Mr Rudolph’s death. You should understand that in the event of your death prior to a satisfactory settlement I shall pursue this action against your family just as if you were alive yourself. This includes civil and criminal action both in England and Italy. …

Finally, I must warn you that if you refuse to settle and I institute proceedings then I shall not settle out of court no matter how generous your offers . Others choose to ignore my warnings believing that I was greedy for money as themselves. It has cost them dearly. Now it is your turn Mr Impanni! Are you going to call my bluff ”.

There were several other instances identified by Rimer J in his second judgment.

Equally, Mr Perotti believes, despite numerous occasions of advice to the contrary from the various lawyers he has retained from time to time, that the best way to achieve a result is to say the most outrageous and offensive things and threaten the most offensive things in the expectation that the other side will then be impressed (and or terrorised) into settlement. The above are such instances. After the hearing Mr Perotti sent me some correspondence (which is dealt with in Rimer J’s second judgment (page 18)) in an attempt to suggest that he would have been very reasonable and have negotiated a settlement. I refer to his letter of 30^th October 1996, which said this in paragraph 4:-

“ I always intended taking criminal action against Mr Rudolph and the First Defendant and Second Defendant and I am one hundred per cent certain that an independent jury will find the First Defendant guilty of, inter alia, attempting to defraud the estate of said fees and the Italian funds which he admitted (in correspondence) having concealed from the beneficiaries. If the settlement does not so include my agreement not to take criminal action then I categorically assure you that I shall conduct a private criminal prosecution against the First Defendant for his various fraud/theft/misappropriation of funds/false accounting/etc. I do not see the justice of the First Defendant getting away with what is unquestionably criminal conduct simply by a payment into court of a derisory sum (which he has not had to pay himself) on condition that I accept he did nothing wrong and/or unlawful ”.

He valued the price for abandoning the criminal prosecution at £30,000.00 (Thirty Thousand Pounds) (see paragraph 19 of his letter).

This was against a backcloth of Mr Watson’s lawyers, Barlow Lyde and Gilbert, having paid £25,000.00 (Twenty-five Thousand Pounds) into court. Their response in their letter of 1^st November 1996 was predictable. In the second paragraph they observed that the request for £30,000.00 (Thirty Thousand Pounds) in return for agreement not to commence a private prosecution was tantamount to blackmail. It might not be blackmail, but it certainly would have rendered the agreement unenforceable on public policy grounds. They also said that the proposals in his letter were not realistic because of the terms it sought to impose (referring to land belonging to Mrs Salvi in Italy when she was not even a party to the proceedings). It was suggested that if he seriously wish to resolve the claim before trial he should reconsider his terms.

Mr Perotti’s response was a further long letter dated 4^th November 1996 culminating in paragraph 9, which said:-

“ 9 I repeat that my figure of £120,000.00 is not only reasonable but actually generous and ask you to note the following:-

PLEASE TAKE EXPRESS NOTICE:

If I do not receive your acceptance to settle the entire civil matter for the said sum of £120,000.00 by Wednesday 13 ^th November 1996 I shall proceed to obtain expensive loans and will therefore incur heavy costs in the preparation of the said trial. In the event that you seek to settle at some later stage the above mentioned figure will increase to take into account of the said costs so incurred ”.

Mr Perotti has hand written on that “ no reply to this request = I assumed an increase offer could be made after the trial started (i.e. before end as allowed by rules) ”. This demonstrates the unrealistic stance taken by Mr Perotti. Having written in the intemperate and unrealistic terms that he did, Barlow Lyde and Gilbert clearly formed the view that there was nothing further to be said as subsequent correspondence showed.

Rimer J’s conclusion (page 18 of the judgment on costs) was “ the conclusion which I draw from all I have read seen and heard is that [Mr Perotti] has been resolved for years on suing Mr Watson and that short of total capitulation by all Defendants to all his claims, he has always intended to fight this action to its bitter end and which is precisely what he has done ”.

I pause to observe that the bitter end at that stage was April 1997 and over six years later the matters still are the subject of litigation.

Another difficulty with Mr Perotti’s approach is his unwillingness to believe that people can be merely negligent as opposed to fraudulent. Every firm of lawyers and counsel who has not done what he expected of them to do has ultimately been accused of fraud. Thus Mr Rudolph and Mr Watson were accused of fraud (Mr Rudolph receiving that allegation against him as early as 1985). Messrs Collyer Bristow and a Mr Hinks of counsel were similarly accused. Finally, the Second Defendants in this action were dismissed by Mr Perotti, by a letter dated 7^th December 1993. The first paragraph said this:-

“1.

I have no hesitation in believing that both you and Mr Barlow have engaged in downright dishonest conduct. I think both of you ought to be “struck off” from your professional bodies. That being the case it is pointless my attempting to list all the many points which would occasion adding twenty to thirty documents to this matter, which already exceeds six hundred documents. …

2.

The only reasons why you pressed on with counsels meeting was:-

3/1 To dissuade me from proceeding against one of your fellow solicitors.

3/2 To learn the extent of my evidence with the intention of passing the same to the Defendants lawyers.

3/3 To make what other money you could for yourselves in the process ”.

Such allegation is not repeated in the Particulars of Claim served against these Defendants. I asked Mr Perotti during the course of the hearing whether he withdrew the allegations of fraud and dishonesty. He said that they were not pleaded. I explained that that was not an answer to my question, but he declined to elaborate further, but made it quite clear that he reserved his position to make the allegation at a later stage. I should say in this context that this is not the first time that he has done that. In the first action brought against Mr Watson and others, which was determined by Rimer J, he made no allegation of fraud although he ventilated it in the correspondence as I have shown. He did however, issue a second action against Mr Watson where he did include an allegation as to fraud. I will detail the procedural history of the various actions below.

Nor do the lawyers who have the misfortune (if that is the word) to encounter Mr Perotti by representing his victims of litigation obtain any immunity from such actions. In the first action (after the judgments of Rimer J) Mr Perotti applied to commit Miss Foss (Mr Watson’s solicitor) to prison for perjury, misleading the court and contempt of court and to impose financial penalties or disciplinary measures against Mr Semken who was Mr Watson’s counsel. Laddie J dismissed the application on 26^th July 1999. He concluded that the whole application was without justification and that it was a quite improper attempt to harass the lawyers acting for Mr Watson and he went on to make a Grepe –v- Loam Order.

That did not deter Mr Perotti and one of the many applications heard by the Court of Appeal in November 2000 (judgment delivered 2^nd February 2001) was a renewed paper application seeking the same relief (see paragraph 57 of the judgment of Sir Martin Nourse). I will refer to that judgment in more detail. That was the Court of Appeal hearing of Mr Perotti’s appeal against Rimer J’s judgment (and thirteen other listed applications). As Sir Martin Nourse observed, the material “ consists of no more than assertions against Miss Foss and Mr Semken ”.

The applications were heard by me first on Thursday 9^th October 2003. Mr Perotti had only served a witness statement on the 1^st October 2003. The applications before me originally came on before Etherton J on that date, but were adjourned because Etherton J felt obliged to withdraw from the case because he knew Mr Barlow the Third Defendant. On the Thursday before me Mr Perotti said that he had not fully read the evidence served by the Defendants, and had certainly not read the skeleton arguments because he had not had time so to do. I observe that the application notices were issued on 28^th March 2003, there were orders for directions in May and September about the hearing. In between, Mr Perotti had an application for an adjournment refused on 28^th July 2003. Laws LJ confirmed that decision on 26^th September 2003. Nevertheless, Mr Perotti told me that he would be able fully to deploy his arguments if the case was adjourned until Monday 13^th October 2003. I accordingly adjourned it that date.

In the intervening period Mr Perotti served a second witness statement dated 12^th October 2003. In paragraph 3 he made an application:-

“ I, Angelo Perotti, the Claimant, intend to apply for an order:-

(1)

That the judge herein, Peter Smith J, do take disciplinary measures against all the Defendants lawyers for;

(a)

a serious material non-disclosure i.e. failure to include in the bundles the judgment of the Court of Appeal herein 11-10-2002 Potter & Carnwath LJJ in which there Lordships dismissed my application for PTA the Order of Lloyd J herein 24-5-2002

(b)

and/or failure to comply with the Lord Chief Justice’s PRACTICE DIRECTION (Citation of Authorities) [2001] 1 WLR. In particular, para 4 therein ”.

Paragraph 4 of the Practice Direction requires advocates to cite authorities contrary to their interests which have been omitted from their opponents skeleton arguments.

The omitted judgment of the Court of Appeal is an order made on 11^th October 2002 dismissing Mr Perotti’s application for permission to appeal an order made by Lloyd J on 24^th May 2002. He had granted summary judgment at the behest of the Second Defendant in that action (HC98/05104) Mr Hinks. He is in the same position as Mr Barlow the Third Defendant in this action and the allegations against him were strikingly similar save that it included an additional allegation (which Lloyd J unsurprisingly described as being one of the most remarkable points taken) namely:-

“ [Mr Hinks] was seeking to bring undue influence upon the Claimant to settle the action earlier and for derisory or minimal damage or compensation having failed to advise the Claimant to all cause of action and the recoverable damages or compensation there from ”.

Lloyd J had dismissed the action against Mr Hinks.

The Court of Appeal refused Mr Perotti permission to appeal against that order. Once again I will be referring to these judgments in more detail later in this Judgment. The allegations against Mr Hinks, as I have said are the same as those against Mr Barlow. The Court of Appeal concluded that there was no realistic chance of persuading any Court of Appeal that the approach of Lloyd J was wrong.

This is not therefore a judgment which is adverse to the case of the Defendants; it supports it. Neither Mr Phillips QC nor Mr Hochberg referred to it. Mr Phillips informed me that he was not aware of it. Mr Hochberg’s skeleton argument has the appropriate certificate as required by the Practice Direction paragraph 8; that of Mr Philips QC does not. It is not a matter of significance.

Insofar as Mr Perotti has made an application by his second witness statement I dismiss it. It is demonstrative however, of the way in which Mr Perotti approaches litigation. I should say of course that Mr Perotti’s own list of authorities was provided on 1^st October. He told me in the course of the hearing that he did that without actually reading the skeleton arguments. I doubt whether this was actually possible, but accepting it at its face value, Mr Perotti plainly missed the case as well and he did not explain how he managed to miss such an apparently important decision.

These examples I give could be significantly expanded on and reviewing the numerous rulings that have been made against Mr Perotti in previous actions and hearings would make this Judgment of a hugely disproportionate length..

Mr Perotti is a litigant in person. As such he is entitled for allowances to be made for that. He is entitled to assistance from the court in examining legal issues which he has difficulty presenting and he is entitled to assistance from the court in presenting his case if he has difficulties presenting it. However, Mr Perotti abuses those matters. He seems to think (wrongly) that he can make all manner of wide ranging allegations and then it is the duty of the court to pick them up, examine them and raise them against the other parties. That is no part of the court’s duty to assist litigants in person. Second, he ignores the rules. He provided no skeleton argument. He told me that he had never been required to provide skeleton arguments in previous actions before. I find that surprising in the context of the Chancery Guide, which applies the rules as to skeleton arguments to litigants in person as it does to lawyers. Third, he attempted to adopt a procedure before me (which once again he asserted had been adopted in previous actions) of simply going through every document that he chose to put before the court, good, bad or indifferent and make comments on them as he went. I did not accede to that procedure. Fourth, when Mr Philips QC had barely started his submissions, Mr Perotti interrupted him. I told him to make his points at the appropriate time when it came. He said that he had been permitted to interject by Rimer J because he had difficulties making notes and listening at the same time. I should say Mr Perotti suffers from tinnitus. This means that he has a hearing device and I permitted him to tape the court hearings (although I have observed that other judges including the Court of Appeal have refused him such). Nevertheless, I refused to allow him to interject because in reality he is better placed than any other person because he hears with far more clarity matters that are picked up on the microphones and transferred to his hearing aid than might be heard by all other parties. I did not observe Mr Perotti actually having any difficulty taking notes as the case went on, although the interruptions did carry on, but I suspect (having seen some of the other judgments) to a substantially reduced degree.

The following is a resume of the previous proceedings arising out of Lorenzo’s Will.

The various actions summarised above have included two trials at first instance, one summary judgment application at first instance and two appeals. In all of them, save in minor respects, Mr Perotti has lost, despite devoting many days of court time and involving other parties in the expensive and extravagant exercise. To say he has had his “ day in court ” on every conceivable point that has been raised is a serious understatement of the factual situation.

Given the procedural matters that have already occurred in the other applications, as set out above, the Defendants, by their applications, all issued on 28^th March 2003, seek to strike out Mr Perotti’s claim on the grounds that there are no reasonable grounds for bringing the same, or alternatively they are an abuse. In the further alternative, both the solicitor Defendants and the barrister Defendant seek summary judgment on the basis that Mr Perotti’s claim has no real prospect of succeeding.

In respect of the first part of the application, all Defendants base their application on the recent Court of Appeal decision of Secretary of State for Trade and Industry –v- Bairstow [2003] 3 WLR 841 . The Defendants contentions are that all the issues raised by Mr Perotti in the action against them have been adjudicated upon in the other judgments (namely Lloyd and Lindsay Js) and it is therefore an abuse of the process for Mr Perotti to be permitted to relitigate the same matters against them. They rely upon paragraph 38 of the Judgment of Sir Andrew Morritt V-C in the Bairstow case:-

“ If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge then factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or (ii)to permit such relitigation would bring the administration of justice into disrepute ”.

In respect of the Part 24 application, the Defendants application succeeds unless Mr Perotti establishes he has a realistic prospect of success, as distinct from a fanciful prospect of success: see Swain –v- Hillman [2001] 1 All ER 91 . Mr Perotti, on a number of occasions attempted to suggest that the matter should go to trial, merely because he denied matters put in evidence by the Defendants. The most obvious of these was in respect of the twenty-page attendance note prepared by Miss C Yu of the Second Defendants of the conference of 9^th September 1993. Mr Perotti has a one-page note of the conference (which lasted in excess of 4 hours). As will be set out later in this Judgment when I come to deal with the particular allegations, he simply denied matters took place as alleged in the note, when it suited him. Merely because a party denies something, even in a witness statement, does not mean on a summary judgment application that the court is bound to accept that assertion: see National Westminster Bank –v- Daniel [1993] 1 WLR 1453 . Of course the court on a summary judgment application should not embark on a mini-trial; if that is required it is impossible generally to be able to say there is no real prospect of success. The court has to conduct a balancing exercise, and in so balancing the evidence before it, if it concludes a defence or a claim has no prospect of success, then the applying party is entitled to have the action dismissed or the defence struck out as the case may be.

Mr Perotti did not adduce any evidence addressing the merits of the issues raised in his particulars of claim and raised in the Defendants evidence beyond (I suppose) the graph he produced which shows that £100.00 (One Hundred Pounds) invested in the FT All Share Index between 1985 and 1997 would have produced a seven fold return. This is not evidence of anything in fact. As Lindsay J was at pains to point out in his judgment when he deal with the entirety of the Nestle issue, including the self same graph (paragraph 146 – 161) the graph is of no evidential value in isolation and numerous other factors have to be born in mind, none of which Mr Perotti addressed. Belatedly, in the middle of the trial, Mr Perotti apparently sought to adduce expert evidence, but he was unable to identify any witnesses nor what any witnesses if found would say. Lindsay J accordingly refused the application.

Mr Perotti issued the claim form against the present Defendants on 26^th April 1999. He did not serve it then and waited until virtually the last minute to serve the particulars of claim, serving them on 15^th August 1999. Bearing in mind the fact that the allegations go back to the period of April-December 1993, when he issued the proceedings he was at the very end of the limitation period.

In paragraph 2 of the Particulars of Claim, he alleges that the First Defendants were retained in about April 1993 to advise and represent the Claimant concerning the administration of the estate of Lorenzo. He says that the Second Defendant was instructed in or about July 1993 to advise him and to represent him in the event that the said firm and the Third Defendant advised him that he had a good case in the first action (i.e. the first action referred to above). The Third Defendant is a barrister who was retained, he says, by the Second Defendant to advise on the claimant’s first action generally.

He recited some of the earlier actions in paragraph 4 and in paragraph 5 stated that he issued these proceedings so as not to fall foul of the time limits for instituting proceedings.

In paragraph 7 he pleads that it is the duty of the Defendants to advise upon all causes of action likely to result in the award of damages/compensation to him and the estate, and goes on to plead five specific breaches, as follows:-

At paragraph 8 he also complains, in effect, about a failure to appeal the order of Roger Kaye QC of 25^th November 1992, who refused to order on an interlocutory basis administration of the estate and also refused on an interlocutory basis to remove Mr Watson as executor. It will be recalled that even at trial and despite Mr Perotti identifying various lapses of duty on the part of Mr Watson, Rimer J refused to remove Mr Watson and that was upheld by the Court of Appeal. Mr Perotti asserted that Nourse LJ came close to removing Mr Watson and it was a foregone conclusion that the Court of Appeal would have removed him if Mr Perotti had been able to include in his grounds of appeal the fact that the administrator had been charging the estate for fees without any authority.

The question of the fees issue was not before Rimer J at the trial but he was aware of it and decided it should follow the main action if necessary. The Court of Appeal agreed with this stance. However, that appears to be the result of a decision made by Mr Perotti, because Mr Watson’s application for remuneration had been issued on 24^th May 1996. Rimer J gave directions in the remuneration application which ensured it would not come on until after he had given judgment, see the judgment of Neuberger J on the costs application dated 5^th July 2001, page 40.

I simply do not accept that Nourse LJ would have removed Mr Watson if the fees issue had been known. In dismissing Mr Perotti’s appeal, out of time against the order of Roger Kaye QC, Nourse LJ said (page 2 of the judgment):-

“ The only matter of substance considered by the judge which is still in issue is the plaintiff’s summons seeking summary removal of the second defendant as executor, a step which could only be taken on an interlocutory application in circumstances of real and serious risk to the assets of the estate. I should point out at this stage that the plaintiff, in his draft notice of appeal, does not seek an order for the removal of the second defendant from this court. The primary relief sought is an order that the first and second defendants should complete the administration of the whole estate under the supervision of the court and that they produce and verify full and proper accounts. However, those again are orders which are only made on an interlocutory application in exceptional circumstances ”.

I do not accept that Mr Perotti would have established that there was any jeopardy to the estate that would have justified removing Mr Watson on interlocutory basis. Even if the remuneration issue had been deployed, to my mind it would have made no difference.

The charging clause issue was extensively considered by Lindsay J. In paragraph 102 he refers to the note of conference dated 9^th September 1993 with Mr Barlow. As that note of conference makes clear, Mr Perotti was advised in conference that he did not have a good case and that he was aware that there was no charging clause in the English Will.

Before me, Mr Perotti denied that he was aware of the charging clause issue as opposed to the fact that Mr Watson attested the Will as the basis for invalidity. The following is noted at page 29 of the note of conference:-

“ AP: Administrators cannot get fees if they have witnessed the will.

FB: A witness cannot operate a charging clause under a Will, but he can ask a third party to administer the Will.

AP: There is no charging clause, so they can’t charge.

DS: Even if Mr Watson would not have taken the £32,000.00 the maximum benefit to you would be £5,000.00. This is not a significant amount having regard to the whole proceedings ”.

Before me, Mr Perotti denied that there was any such discussion in the conference. I asked him when he first considered that part of the note on this aspect; bearing in mind it was recording events by now ten years old. He indicated that he had not really considered it until it was raised in the hearing. I asked him how his recollection of a four hour conference ten years ago, could possibly go in to such detail. He evaded answering the question. He suggested that the conference note was a dishonest document, prepared for the purpose of covering the Second and Third Defendants’ backs. I asked him why he thought Miss Yu, who attended the conference solely for the purposes of taking a note for the benefit of her principal, counsel and her client, would have at that stage been thinking about protecting the Second Defendant’s back and in effect preparing false notes of the conference. Mr Perotti was unable to give a coherent explanation as to why she would have done that. Mr Barlow approved the conference note shortly after the conference. Mr Perotti complained that the note could not be verbatim because a four-hour conference would contain many more pages. Of course that is right, but I have no reason to doubt that the conference note accurately reflects the gist of the important points discussed in the conference. There is no prospect of Mr Perotti being able to challenge, at this late stage, the veracity of the note. I am quite satisfied that the note accurately reflects what was discussed.

The absence of the charging clause, Mr Perotti suggested to me, was something that was new to him, after the conference. Quite apart from the note, that does not square with the note of the judgment of Roger Kaye QC dated 25^th November 1992. At page 25 G of that judgment Mr Kaye QC says this:-

“ I have seen a copy of the 1983 will. I was referred to that, and that contains, as the Plaintiff (i.e. Mr Perotti himself) accepts, no charging clause. That being so, of course the First Defendant, as a solicitor, and acting under a power of attorney, is merely acting as the professional agent of a named executor. As such, it seems to me that the First Defendant is perfectly entitled to charge for his time expended on the administration of the estate, as any other solicitor does, and of course that may be subject to taxation … ”.

In fact whilst I can understand why Mr Kaye QC would have thought that, that is not the position where an attorney takes the grant; by virtue of section 21 of the Administration of Estates Act 1925, he is deemed to be an executor for all purposes and thus he cannot charge for his attorney time, absent a charging clause or an order from the court.

I do not think that would have made any difference on the appeal for the reasons given by Nourse LJ.

Thus, Mr Perotti is not correct when he suggested before me that the issue of the charging clause was not raised at the conference. He was well aware of the charging clause issue, he apparently having raised it himself a year before at the hearing in front of Roger Kaye QC.

As I have said above, Lindsay J also considered this extensively. In the course of that consideration the note of conference was put in evidence. I asked Mr Perotti how that note of evidence came to be in before Lindsay J. He thought it had been obtained by the Defendants as a result of orders for disclosure made by Lindsay J during the trial. I asked Mr Perotti whether he had challenged the authenticity and accuracy of the note at the hearing before Lindsay J, and he was unable to answer that coherently. I conclude that he did not challenge the authenticity of the note before Lindsay J, but merely wishes to challenge its authenticity now, before me, because it is convenient for him so to do.

As Lindsay J pointed out in paragraph 127 of his judgment, the fees issue was initially before Rimer J in action 1, but he chose not to rule upon the issue because Mr Watson had raised it as a separate topic. Mr Perotti apparently put to Mr Watson in cross examination, in front of Neuberger J in the remuneration action that the subject of fees had been before Rimer J. It was plainly dealt with separately and as Lindsay J observed in paragraph 127 again, the Court of Appeal on 20^th December 2001 considered it would have been inconvenient to have dealt with the remuneration issue until it had been decided whether or not Mr Watson was to have been removed. I agree with Lindsay J’s conclusion in paragraph 128, that even if the fees issue had been included the decision by Rimer J would have been no different, and furthermore of course, the fact that Mr Watson ultimately obtained remuneration shows that the failure to include any claim in relation to his fees would not have caused the estate any loss.

Mr Perotti asserts that if he had put that in the claim, he would have obtained a favourable settlement from Mr Watson. This is completely unreal. I have already alluded in part to Mr Perotti’s attitude. As Lindsay J put it in paragraph 129 of his judgment:-

“ The aggressiveness and the unreasoned conviction of his own rectitude and in his ultimate success seen throughout Mr. Perotti’s correspondence with Mr. Watson would have made any compromise acceptable to Mr. Watson and such as would have led to a consensual retirement by Mr. Watson in the highest degree improbable. Mr. Perotti did not accept such offers nor such payment-in as Mr. Watson did make and I share Rimer J’s view that Mr. Perotti had embarked on a mission which he was determined to take to the bitter end ”.

Having seen Mr Perotti, I agree. I also agree with Lindsay J’s conclusion that the arguments were hopeless.

Reverting to Mr Perotti’s particulars of claim, in paragraph 10 he sets out what he described as the material points, following a meeting with the First Defendant, when he wrote his letter dated 17^th May 1993, as follows:-

“(1)

That he was overwhelmingly concerned about appealing the orders of Roger Kaye QC

(2)

That he would be suing his former solicitors, Collyer Bristow for failing to appeal the orders

(3)

That Mr Fairthorne First Defendant’s agent was instructed to instruct a first class competent and experienced counsel

(4)

That Roger Kaye QC’s order did not include his refusal of leave to appeal

(5)

I repeat my instructions to you that you have studied the 475 documents I left with you fully so that you will have noted all things that give rise to any cause of action ”.

He then pleads in paragraph 10/1 that the First Defendants were under a clear duty to appeal the said orders of Roger Kaye QC and to advise and plead all causes of action.

On 17^th May 1993 Mr Perotti did indeed write to the First Defendants (Mr Fairthorne) setting out all of the matters summarised in paragraph 10 of his particulars of claim.

He sent a further letter on 20^th May 1993, including further correspondence that he had obtained from Collyer Bristow. Mr Fairthorne acknowledged Mr Perotti’s letter of 9^th June 1993, where he said that he had had an opportunity of considering the documentation to a certain extent, but it was quite clear looking at the papers that the work was going to be considerable, and was going to cost considerably and in excess of the £500.00 (Five Hundred Pounds) paid. On 12^th June 1993 Mr Perotti wrote to Mr Silverman in the absence of Mr Fairthorne, enclosing the letters and (apart from referring to another independent action) sought confirmation that the instructions would be carried out. Mr Silverman acknowledged that on 14^th June 1993. Mr Fairthorne wrote on 22^nd June 1993 saying:-

“ I feel it would be helpful if we were to meet further, as I have previously stated have not had an opportunity of considering the papers. The matter is really far from clear and there are apparently a number of other issues which are also causing problems ”.

Mr Perotti replied on 22^nd June 1993, complaining about the delay. Mr Fairthorne replied on 25^th June 1993 reiterating on the need for the documentation properly to be assessed before it could be given to counsel and that he wished to consider that with Mr Perotti, going so far as preparing instructions to counsel in his presence to ensure that he had fully understood the matter. He asked him then to make arrangements for a meeting.

On 29^th June 1993 Mr Perotti wrote stating

“ It is patently clear that you have no intention of carrying out my instructions and addressing myself to my written request.

Therefore please accept this letter as my formal dis-instruction of your nonexistent services in this matter.

A more detailed letter will follow in due course ”.

A detailed letter was then sent on 12^th July 1993, setting out long complaints about the delay, leading to a familiar conclusion on page 4 of the letter:-

“ PLEASE TAKE EXPRESS NOTICE:

I have come to the conclusion that Mr Fairthorne’s failures are not simply a matter of negligence and/or incompetence but down right dishonesty. I do not believe any court in the land would excuse him failing to address himself to the contents of my several letters without him having ulterior motives for such flagrant improper conduct. I believe his request for more money was so that he could get as much money as possible before I realised he had no intention of litigating honestly on my behalf ”.

He returned to this vein in paragraph 23/6 (page 8)

“ The conduct of your firm leads me in no doubt that you are dishonest and or incompetent and or fraudulent and/or negligent ”.

Mr Booth responded to the letter showing considerable restraint. He followed up returning £147.50 (One Hundred and Forty-seven Pounds Fifty Pence) of the £500.00 (Five Hundred Pounds) with which the First Defendant had been put in funds.

That represents the totality of the relationships between Mr Perotti and the First Defendant. It has led to a claim issued against them nearly six years later, where it is alleged that but for their action (and of course the other Defendants) there would never have been a trial and there would have been a settlement, whereby something between £1 to £2 million (One to Two Million Pounds) would have been paid.

In the course of his submissions before me, Mr Perotti suggested that the major failure was the failure to appeal the order of Roger Kaye QC, which had been made some six months earlier. It is true that the Court of Appeal when it dismissed Mr Perotti’s appeal in person against the decision took into account the delay in seeking to appeal the order (Mr Perotti issued an application to appeal the decision in November 1993). I do not believe for one minute that if the application had been issued in June 1993, as opposed to November 1993 that it would have been treated any differently. I do not see how it can possibly be alleged given the tenuous period of contact as between Mr Perotti and the First Defendants that any allegation as alleged by Mr Perotti against them has any realistic prospect of success. The correspondence speaks for itself. Mr Perotti expects instant action and when instant action (as perceived by him) is not forthcoming instead of agreeing to have a meeting he simply terminates the employment of the First Defendants and makes the usual allegations of dishonesty against them. That is enough in my judgment to dispose of the claim against the First Defendants.

In case I am wrong, I will also address the particulars of negligence when I move on to consider the claims against the Second and Third Defendants.

Following the termination of the brief relationship with the First Defendant, Mr Perotti retained the Second Defendants. He and Mr Stone of the Second Defendants spoke the week before, Mr Stone wrote to him on 27^th July 1993. Mr Stone carefully set out in his letter the terms upon which he was prepared to act as follows:-

“(1)

Initially, I will obtain an authoritative counsel’s opinion on the various claims arising out of the administration of your uncles estate. If the advice is against proceeding further, I will not act for you further. If, on the other hand, the advice is positive, I will take the case on subject to a payment on account of the firm’s costs (to be agreed with you at that stage) and monthly invoices thereafter.

(2)

For the purpose of obtaining initial advice, I require £1,000.00 on account of costs. I will also require your papers, so that I can put together some comprehensive instructions to counsel. I envisage that counsel’s opinion will be given in the course of a meeting with you once he/she has considered the papers ”.

Mr Perotti replied by 29^th July 1993 enclosing the cheque and the documents and making some observations about Mr Hinks’ pleadings and referring to allegations of fraud against Mr Watson being the “ fictitious uncertainty of domicile in order to grant them 4 years (which coincides with the property boom) during which they invested the sums for their own benefit ”. Mr Perotti is clearly raising there, by way of a side wind the Nestle issue, as he is criticising the investments.

Mr Stone acknowledged the letter on 2^nd August and told Mr Perotti that a conference had been arranged for 9^th September at 2.30 p.m. In the letter he also said the purpose of the conference was “ to advise whether or not there are any reasonable grounds for continuing further ”. Mr Perotti replied on 4^th August 1993 stating that he was unclear what Mr Stone meant by that, because it had never been doubted that he had a strong case. This was simply untrue, as Mr Hinks has already advised that he should settle the case, and the reality is that Mr Perotti did not like Mr Hinks’ advice.

Mr Perotti also adverted to problems he had with other lawyers:-

“ My problem has been trying to get any solicitor and/or counsel who would plead fraud amongst other claims and not simply attempt the said damage limitation exercise in order to protect a fellow lawyer ”.

This is another of Mr Perotti’s misconceptions. He assumes that lawyers can make allegations of fraud simply because clients instruct them so to do. That has never been a correct basis for lawyers acting. If counsel settles pleadings alleging fraud, or devises facts when there is no basis for either matters, that is professional misconduct on counsel’s behalf.

The instructions were sent to Mr Barlow. I note that there are at least 319 pages provided to Mr Barlow. In paragraph 5, reference is made to the allegation made by Mr Perotti of conspiracy to defraud … and in paragraph 6 it refers to the fact that Mr Stone had stressed to Mr Perotti, that if the advice was adverse he would not act further, and that Mr Perotti accepted that as appears from the correspondence.

Mr Perotti before me denied that that was the case and referred to a tape of a telephone conversation he had with Mr Stone to verify that. His case is that the retainer was far wider. Mr Perotti did not produce the tape. It has not been produced to the Defendants although it has been referred to in the particulars of claim (paragraph 11/1). The conversation appears to be summarised in the paragraph. I do not accept Mr Perotti’s submission that those go beyond what Mr Stone said in the correspondence. Therefore even though Mr Perotti has not produced the tape I do not see it would have made any difference. I am quite satisfied that the Second Defendants were retained to review the case and that they would consider whether they acted further in the light of advice given by Counsel in conference.

The conference lasted over 4 hours and I have already expressed my view of the notes that were prepared by Miss Yu. Reading the conference notes, it is plain to any reasonable reader that the conference has been wide ranging, comprehensive and the advice given was soundly based. As I have already observed, Mr Perotti denies the notes are an accurate record of the conference, but I reject his submissions for reasons that I have already given. I have already referred to the charging clause issue. Equally, Mr Perotti plainly raised the question of under investment, see page 16 of the notes, which records the following:-

“ AP: Is it a duty to maintain the value of the assets?

FB: Yes.

AP: Well there was £3/4m in 1984 and this was merely earning 1% interest.

FB: Was this sum invested?

AP: You have to, you can’t just put it into a bank account.

FB: Have you claimed this loss of capital value in your Statement of Claim?

AP: I asked Hinks about the loss of value and he told me an accountant was necessary to examine this ”.

Further on this exchange takes place:-

“ AP: I would accept £100,000. The Defendants would have made a minimum of £2m and would be laughing up their sleeves. The letter must be phrased so that it can be shown to a Court that I was prepared to settle at such a late stage.

FB: This is absolutely no evidence that the Defendants defrauded £2m.

AP: With £0.75m invested in the property market, a value of £2m would have been reached.

DS: You will have to swallow your pride in a settlement. In addition, you should try to distinguish between your thirst for justice and the limitations of the English legal system. ”

During the course of the submissions on behalf of the Defendants, I raised with Counsel whether or not the advice which was given in conference to settle was (for the purposes of the proceedings at this stage) arguably negligent in that it advised a settlement before the question of whether or not there was a claim along these lines, was investigated.

Mr Barlow, in paragraph 27 of his witness statement says that he was familiar with the Nestle case. This is not surprising given his area of expertise and the fact that the decision had been reported only two or three weeks before the conference. He sets out in that paragraph why the Nestle case had no application and refers to the exchange in the note of conference to which I have made reference. He said that he had as a result of that exchange concluded that a claim for lost capital by reason of a failure to invest was inherently unsustainable and further Mr Perotti had received advice from Mr Hinks and had not taken any steps to gather the evidence necessary to establish whether there were any grounds for pursuing the claim.

The note does not record any such conclusion, but that does not mean that the thought processes were not gone through by Mr Barlow as he says in his witness statement, which I accept. There is no evidence brought forward by Mr Perotti to contradict what Mr Barlow says. There is other material, which indicates that Mr Perotti had opportunities to raise these matters if he so wished, but chose not to do so. First, there is the reference to the advice of Mr Hinks to obtain an accountant. Mr Perotti said that he could not afford an accountant. That was not the position in 1993 and, earlier in his submissions, to bolster a different point, Mr Perotti said he could always find money when it was necessary. The second point is that Mr Perotti was clearly alive to it as shown by his letter and the discussion in conference. The third point is that Mr Perotti had ample opportunity to raise this when he took over the conduct of the action after December 1993, but he chose not to do so. Finally, by virtue of the reasoning of Lloyd J and Lindsay J the action would in any event been doomed to failure. It follows that there is no realistic prospect of this failure to advice being established.

The overall impression given by the conference note is that everything was gone through carefully and the conclusion of Mr Barlow’s was identical to that of Mr Hinks; namely that while there were issues that could be raised, the exercise did not look cost effective. At the end of the conference Mr Perotti accepted that he should seek a settlement of £100,000.00 (One Hundred Thousand Pounds) and that the Second Defendant’s through Mr Stone indicated their willingness to continue to act for the purpose of settlement only and Mr Barlow was to settle the letter.

Mr Perotti accepted that, because he wrote on 18^th October 1993 looking forward to receipt of the draft letter as agreed. The letter was enclosed on 20^th October 1993 and sets out a willingness to settle for £100,000.00 (One Hundred Thousand Pounds).

The letter appears to have enraged Mr Perotti, because it attracted the familiar tirade by his letter of 21^st October 1993. First, he berates the Second Defendants for not following the instructions to plead fraud. Second, he describes the conference as trench warfare, and that he would not waste time detailing the complaints, although he made a note afterwards (i.e. one page of notes). Ultimately, he suggested that Mr Stone should return his £1000.00 (One Thousand Pounds) and the documents.

Mr Stone replied by letter dated 29^th October 1993, which set out a detailed and considered response to the letter, which provides a complete answer to all of the complaints of Mr Perotti. This led to the response of Mr Perotti, again of 7^th December 1993, to which I have already made reference, accusing both Mr Stone and Mr Barlow of dishonesty.

I have already dealt with allegation 1, the charging issue. Allegation 2 is the Nestle issue, which I have already dealt with. Allegation 3 is hopeless. Mr Perotti before me ultimately acknowledged that. He would be personally liable to the costs in whatever capacity he sued. The fourth allegation equally has no sense. Mr Barlow advised him the case had no prospect of success and he should not pursue them. The same allegation was made against Mr Hinks and that was dismissed by Lloyd J. The allegation against Collyer Bristow met a similar fate before Lindsay J. Allegation 5 equally fails for the same reasons. Adding Mr Rudolph would simply have added to the Defendants against whom the same allegations would have failed.

All of these issues as I have set out in this Judgment have been dealt with before. Independently of that, and on the material before me, I have come to the overwhelming conclusion that they have no prospect of succeeding against these Defendants either.

I refer to the test under this head in the Bairstow case above. It would be manifestly unfair to these defendants to have to expend significant sums of money in defending actions, which are bound to fail and have already failed in different courts. There is no realistic prospect of any costs being recoverable. In addition, it is manifestly unfair to these Defendants to be subjected to these allegations so many years after the event and it is manifestly unfair to these Defendants to be subject to allegations like this bearing in mind the way Mr Perotti conducts his litigation.

Further, to allow Mr Perotti to continue and raise these matters would plainly bring the administration of justice in to disrepute. Mr Perotti’s crusade against anybody who has the misfortune to cross his path has received an extraordinary amount of court time. Mr Perotti has had ample opportunity fully to ventilate all of the matters and he has lost on each and every occasion in substance. The proceedings themselves have already had a life of eleven years. These proceedings themselves already have been in existence for over four years yet they have not proceeded to disclosure. Mr Perotti chose to leave these proceedings while he followed the other actions. To allow further court time to be devoted to Mr Perotti’s litigation deprives other court users of valuable limited court time and therefore leads to the administration of justice being brought into disrepute. It cannot be right that the court’s time should be further taken up with proceedings of this nature.

I therefore conclude that the proceedings ought to be struck out as being an abuse in accordance with the Bairstow case.

In any event, given all of the matters, which I have set out above, there is no real prospect of success and therefore in the alternative the application of the Defendants’ for summary judgment should also be acceded to and the Particulars of Claim struck out on that basis.