Islamic Investment Company of the Gulf (Bahamas) Ltd v Symphony Gems NV & Ors

The facts giving rise to the present application are so extraordinary that they could have come from one of A.P.Herbert’s “Misleading Cases”.

As with A.P. Herbert’s “Uncommon Law”, this case involves the false document literary technique – the creation of a sense of authenticity through the invention of documents which appear to be factual.

The “author” in this case was Mr Andrew Benson, then a partner in Byrne & Partners LLP who was purporting to act for the Second Defendant, Rajesh Mehta (“RM”).

From the end of October 2010 until December 2013 he conducted fictitious litigation for RM. That litigation involved fictitious hearings before the Commercial Court and the Court of Appeal; purported judgments of those courts; purported sealed court orders; a purported hearing transcript; purported skeleton arguments; purported correspondence with court officials and the Claimant’s solicitors, Norton Rose; the fictitious instruction and engagement of various counsel, and telephone conferences involving the impersonation of his senior partner and of leading counsel. None of this reflected reality. Throughout that period there was in fact no contact with Norton Rose or the court.

The deception was finally discovered in December 2013 when questions were asked about a transcript of a purported hearing before Popplewell J. and his real clerk was contacted directly.

Mr Benson has been dismissed from Byrne & Partners and is under investigation by the Metropolitan Police and the Solicitors Regulation Authority (“SRA”).

The present application seeks the setting aside of orders made by the court at the time Mr Benson was purportedly acting for RM in real litigation. That litigation culminated in an order of David Steel J. dated 4 October 2010 (“the ACO”) by which he activated a suspended committal order made by him on 1 October 2009 (“the SCO”) and had a bench warrant issued for RM’s arrest. RM seeks the setting aside of all adverse orders made against him during the time of his representation by Mr Benson from the first instruction of Byrne & Partners on 28 June 2007 until the ACO in October 2010, but his main focus is on the SCO and the ACO. He contends that it is apparent that Mr Benson was acting fraudulently and against his interests from at least the end of October 2010 until December 2013; that there is clear evidence of Mr Benson misconducting the litigation in the lead up to the SCO and the ACO; that that misconduct had a direct impact on the orders made, and that there is good reason to believe that he was acting against RM’s interest and with the intention and effect of prejudicing him in the proceedings. In these circumstances it is submitted that the court should set aside the orders pursuant to its broad discretionary powers under CPR r3.1(7).

Neither Mr Benson nor Byrne & Partners are party to these proceedings, nor are they represented. Any findings I make are made on the basis of the evidence presently before the court and for the purpose of this application only.

The real litigation has a long history. It is conveniently summarised in the judgment of the Court of Appeal [2010] EWCA Civ 709 in which it dismissed an appeal from the SCO. In giving the judgment of the Court Toulson LJ. explained the background as follows:

“3 The proceedings arise from a finance agreement made between the claimants, an Islamic Investment Company, and the first defendants, who were diamond traders, in January 2000. The appellant guaranteed the obligations of the first defendants and both the financing and the guarantee agreement were subject to English law and English jurisdiction. An event of default having occurred, the claimants issued proceedings in 2001 against the first defendants and the appellant. In October 2001 the claimants obtained a worldwide freezing order against the appellant for over $10 million and an order that the appellant provide disclosure of his assets.

4 On 13 February 2002 Tomlinson J ordered that summary judgment be entered for the claimants against the first defendants and the appellant for a sum of just over $10 million. The amount now stands with interest at over $14 million. None of it has been paid. The history over the last eight years has been of the claimant's unsuccessful attempts to obtain payment. The appellant has never had difficulty in being represented by distinguished solicitors and counsel. The material parts of the history are chronicled in the judgment under appeal. Having summarised and having set out the history, the judge said at [51]:

“It is common ground that RM has the resources to meet the judgment debt. But in my judgment this history demonstrates that a determination on the part of RM to devote his time and money to avoid payment and to obstruct the enforcement process. The impression is fortified by the content of the oral examination as so far completed. I regret to say that my reaction is few witnesses have instilled still less confidence in their testimony whether from the perspective or reliability or completeness. Throughout he was evasive and unconvincing. Save where unchallenged, I would be hesitant to accept any of his evidence absent corroborative material.”

5 The oral examination to which the judge referred had taken place before him on 24 April, 27 April, 22 July and 23 July 2009. His examination was as a judgment debtor, pursuant to the provisions of CPR 71. The committal application was heard by the judge on 23 July immediately after the conclusion of the oral examination under CPR 71, so the judge had heard a good deal of evidence from the appellant. However, he did not give evidence in response to the committal application.

6 The contempt application arose in this way. On 17 January 2007 Master Miller made an order, which I will refer to as the original order, that:

“1)

the judgment debtor attend the court on 20 February 2007 at 10.30 am to provide information about his means and any other information needed to enforce the judgment order. The questioning will take place before a Court Officer.

2)

The judgment debtor at that time and place produce at Court all documents in the judgment debtor's control which relate to each of the judgment debtor's means of paying the amounts due under the judgment or Order and which related to those matters mentioned in paragraph 1. The documents produced must include those shown in the attached list of documents in Appendix 1 below.”

7 The critical part of the order is at paragraph 2. The contempt found by David Steel J was that the appellant wilfully failed to comply with that order, but that is to jump ahead. In view of the arguments it is necessary to trace the events over the period of some two years nine months between the date of the original order and the finding of contempt.

8 The appellant sought to evade personal service of the original order by denying his true identity. He was then arrested in Belgium, where he suffered or at least claimed to have suffered a neck injury. This led to serial postponements of the date fixed for his oral examination.

9 On 5 June 2007 the claimants obtained an order, without notice, for substituted service of the original order, now re-listed for 3 July 2007, and an order that if the appellant was prevented from attending the re-listed hearing he was required to provide the documents referred to in the original order to the claimants' solicitors, verified by affidavit.

10 The order, as served by way of substituted service, was in its original form save that the date specified in the original order was altered to the new date and the order was restamped with that alteration. The same thing happened on each subsequent occasion when there was a postponement.

11 As a result of an adjournment application by the appellant, on 3 July 2007 a consent order was made for the hearing to be adjourned to 9 October, with further orders that the costs should be the claimants' and that the appellant should provide the documents referred to in the original order to the claimants' solicitors verified by affidavit on 10 July 2007. That did not happen, and on 17 July the claimants obtained what was described as a final order, that the appellants provide the documents to the claimants' solicitors by 31 August 2007. Three days after that date, on 3 September 2007, the appellant issued an application challenging the court's jurisdiction to have made the orders on 5 June and 31 August, which had been made on without notice applications, and the order of 5 July, which had been made by consent. The basis of the application was that the court had no jurisdiction to require production of the documents prior to the hearing ordered by paragraph 1 of the original order. The application came before Andrew Smith J on 4 October 2007 and he allowed it.

13 On 8 October Andrew Smith J also granted an application by the appellant for a further adjournment of the hearing which was due to have taken place on the following day. The hearing was re-listed for 27 November 2007.

14 On 26 November the appellant sought a further adjournment. This time it was because he had gone from Belgium to India voluntarily, so as to avoid extradition proceedings and was unable to leave India. The application came before Master Miller. On 6 December he adjourned the hearing to 31 January 2008 and ordered that in the event of the appellant failing to attend on that day he should provide written answers to a list of questions by 14 February 2008. The imposition of a requirement to provide answers to questions was no doubt in consequence of the previous finding that the court had no jurisdiction to require the production of documents prior to the hearing.

15 The appellant did not attend on 31 January 2008 and Bean J made a suspended committal order. On 21 February 2008 Teare J made an order for substituted service of Master Miller's original order but amended to set a new date of 11 March 2008. He also granted substituted service of the suspended committal order. On 11 March 2008 two things happened. This court set aside the suspended committal order made by Bean J, although it ordered the appellant to pay all the costs. Simultaneously the examination which had been ordered by Master Miller 14 months earlier began before a court officer. The appellant did not produce any of the documents which he had been ordered to produce. He did produce a witness statement annexing his answers to the questions which Master Miller had ordered on 6 December. In relation to a considerable number of the questions, but by no means all of them, he stated that he declined to give an answer on grounds of self-incrimination. At the oral examination he answered some questions put to him but refused to answer others on grounds of self-incrimination.

16 On 16 May 2008 Master Miller made an order which among other things provided:

“The second defendant's failure to comply with paragraph 2 of the order of Master Miller made on 16 January 2007 be referred to the same Judge pursuant to CPR 71.8(1) (c) .”

The reference to the “same judge” was to a judge of the Commercial Court to whom Master Miller referred the issue whether the appellant was entitled to refuse to answer questions which had been put to him on grounds of privilege against self-incrimination.

17 On 15 July 2008 David Steel J dealt with the privilege issue and ruled against the appellant. 18 July 2008 had been fixed for a resumption of the examination under CPR 71, but on the morning of the hearing David Steel J granted a further application to adjourn proceedings on medical grounds and fixed a resumed hearing for 8 September, when he was due to be sitting as the vacation commercial judge.

18 In his judgment on 18 July he addressed the question what should happen prior to the adjourned hearing in September. As to that he said as follows:

“10.

The next question is what, if anything, must happen prior to that hearing. The first thing that must happen is that he must produce the documents that he was ordered to by Master Miller in January 2007, 18 months ago. As I understand it, it is suggested that the failure to comply with that order is associated with a claim of privilege. For the moment I will accept that there is, or may have been the justification, for failing to produce the documents but that justification has now disappeared and the documents that have been called for an indeed the documents that he has offered to produce during the course of the last hearing, must be disclosed some 10 days before the next hearing.”

I quote that extract because it is relevant to one of the submissions which it has been necessary to address.

19 There followed further applications, the details of which it is unnecessary to recite, and further adjournments. The appellant sought leave to appeal among other things on the issue of privilege. Leave was initially refused. On the appellant's renewed oral application it was granted, but only on the terms that the appellant brought the entirety of the judgment sum into court, paid all unpaid costs orders and provided security for costs. Those conditions no doubt reflected what the court thought of the merits of his position. They were not at all, of course, what the appellant wanted and he did not comply them. It would be naive to suppose that he intended to do so, having regard to the wider history of events, but applied for an extension of time to comply with the Court of Appeal's order, which the court granted. He still failed to comply with the conditions and so that appeal fell away.

20 Some months having elapsed, the hearing for his examination under CPR 71 was re-listed. So it was that it came before David Steel J in April 2009 and on the further dates in July 2009 to which I referred. Shortly before the April hearing the appellant produced some further documents to which I will return. He promised to produce others but did not do so and so on 6 May 2009 David Steel J ordered that he produce the further documents by 20 May 2009.

21 There then ensued the continued further examination under CPR 71 on 22nd and 23rd July 2009 and the hearing of the contempt application. The judge found that there had been a breach of the original order by the appellant's failure to produce the documents which he had been ordered to produce at the hearing on 11 March 2008. He found that he was satisfied to the criminal standard that the failure was through wilful disobedience. As to that he said at [65]:

“…I have no hesitation in concluding that RM's contempt was contumacious. Throughout the period from March 2007 to March 2008 RM's stance is only consistent with a refusal to comply with the order to produce documents. Indeed, no suggestion was made that any material attempt to pay the order had been undertaken. The suggestion that the order had been superseded was… a late and misconceived proposition”

He then considered whether the appellant had effectively purged his contempt by subsequent compliance and concluded that he had not.

22 As to the penalty he said at [75]:

“In my judgment RM unlawfully disobeyed the order of 2007 in March 2008 and nothing that has happened since makes it inappropriate to impose a suspended committal order in respect of that contempt. I am satisfied that it is proper to impose a penalty. Only the coercive threat of the imposition of such a penalty has the prospect of ensuring the obedience on the part of RM. As regards the condition for any suspension, I accept in broad terms the terms suggested by the bank in a draft order but subject to further comment on behalf of RM. The process of specifying the nature of the sanction and the period of suspension during which compliance had been achieved must also involve furnishing an opportunity of RM to make further submissions in this worryingly protracted litigation”

Further submissions were made by the parties before the judge made his final order.”

RM had appealed from the SCO on a large number of grounds, but the main grounds were: (i) there was no breach of Master Miller’s order of 17 January 2007 because that order had been superseded by the court orders made on 5 June, 3 July and 31 August 2007; (ii) there was no contumacious default by RM in failing to produce any documents at all for the hearing in March 2008 because he believed that he was protected from doing so by privilege against self-incrimination; (iii) the judge was wrong in not concluding that RM had purged his contempt by the production of further documents and (iv) the terms on which the order was suspended were inappropriate and the nine month committal sentence was too long. The appeal was dismissed on all grounds. The Court observed at [46] that:

“46 The judge was entitled to regard this as a bad case in which a judgment debtor had metaphorically thumbed his nose at the court and that it merited a significant period of committal if there was to be any realistic prospect of the appellant complying with his obligations.”

Subsequent to the Court of Appeal judgment, a hearing date of 4 October 2010 was fixed for the committal proceedings. Mr Benson appeared at that hearing but stated that he was without instructions. The result of the hearing was the lifting of the suspension of the committal order and the issue of a bench warrant. The chronology leading up to that hearing will be considered in more detail below.

It is necessary to set this out in some detail since RM invites the court to draw inferences from the nature and sophistication of the fraud involved.

Throughout this period RM was outside the UK and only met with Mr Benson on two occasions. For much of this time (and before) RM had the assistance of Mr Sanghvi, an English solicitor who was helping him. Mr Sanghvi has made a 271 page witness statement in support of the application following a thorough review of Byrne & Partners files (although apparently not all of them have been released by the SRA). A number of the communications with Mr Benson were made by or through Mr Sanghvi.

The following chronology is what appears to be shown by the files provided, supplemented by the evidence of Mr Sanghvi.

David Steel J.’s order lifting the suspension of the committal order was made on 4 October 2010. RM immediately instructed Mr Benson to take urgent steps to appeal against that order.

By around 14 October 2010 Mr Benson appears to have led RM to believe that Mr Timothy Owen QC had been instructed to represent him in the future conduct of the case. It has since become apparent that Mr Owen QC was never instructed.

By mid-November 2010 Mr Benson had told RM that he had instructed Lord Kenneth MacDonald QC to represent him. It has since become apparent that Lord MacDonald QC was never instructed to represent RM. However, on 16 November 2010 Mr Benson forwarded to RM and Mr Sanghvi a copy of leading counsel’s note purportedly written by Lord MacDonald QC in relation to expedition of the prospective appeal.

In December 2010 and January 2011, RM expressed concerns that there did not seem to have been any developments. Mr Benson blamed the delay on Lord MacDonald QC, and drafted a complaint email, purportedly to be sent to Lord MacDonald QC’s clerks.

On 30 January 2011 Mr Benson circulated a draft letter to Norton Rose, which Mr Benson claimed was sent on 31 January 2011. In fact, Norton Rose has confirmed that they had no contact with Byrne & Partners after late October 2010. The terms of the letter invited the Claimant to agree to an application to stay or lift the bench warrant to allow RM to attend a hearing.

Mr Benson then forwarded to RM a letter dated 2 March 2011 addressed to the clerk to “Mrs Justice Glouster” [sic], requesting that his matter be brought before a judge other than David Steel J.

By a further letter dated 7 March 2011 Mr Benson purported to have written to the clerk to the Commercial Court list in relation to the removal from the list of an application by RM which was supposedly to be heard on 8 March 2011 before David Steel J.

Mr Benson then copied to RM a letter dated 9 March 2011 purportedly sent to the Registrar at the Royal Courts of Justice expressing concerns about RM receiving a fair hearing, and David Steel J.’s appropriateness to hear the matter.

Mr Benson then provided a draft letter dated 24 March 2011 from Byrne & Partners to Norton Rose (with amendments from Mr Sanghvi), which RM believed had subsequently been sent, expressing RM’s desire to return to the country and appear before the Court to “demonstrate to the Court his efforts in meeting his obligation”. The letter also referred to an application being made “to recuse Mr Justice David Steel from further hearings in respect of this matter”.

Shortly thereafter Mr Benson forward to RM a letter purportedly written to the Civil Appeals Office dated 31 March 2011 in relation to an appeal which had, apparently, been removed from the list on 18 March 2011 because it was considered “events under appeal were to be superseded by events in the Commercial Court.” It now asked for the appeal to be relisted.

By an email dated 8 April 2011 RM contacted Mr Benson expressing his frustration at being unable to see his children, and the impact it was having on them and on RM. He wanted to speak urgently with “Ken” (Lord MacDonald QC) “as I can’t believe the way my matter is being treated by the uk courts, especially since it is a civil matter”.

In an email of 12 April 2011 Mr Benson again appeared to be trying to blame counsel for the delays: “I’m struggling to tie Counsel down but can we meet later this week simply to go over the bias point and make sure I am not missing anything?”.

On 15 April 2011Mr Benson, after many requests, finally emailed to RM what purported to be an order of the Commercial Court dated 16 March 2011 directing that RM’s application be taken out of the list and relisted at the parties’ convenience, that David Steel J. should determine whether to recuse himself, and that all matters pertaining to the matter should be removed from the Court of Appeal list. This appears to be the first of the orders of the Court fabricated by Mr Benson. It bore an apparent Court seal but no judge’s name or signature.

By early May 2011 RM understood that a hearing had been listed for 18 May 2011, at which he would be represented by Lord MacDonald QC. From 4 May 2011 RM was pursuing Mr Benson by email, again expressing frustration at the way things were being handled.

On 14 May 2011 Mr Benson sent to RM what purported to be a draft skeleton argument for the 18 May 2011 hearing.

On 16 May 2011 Mr Benson forwarded to RM and Mr Sanghvi what purported to be an email from Mr Christian Tuddenham of Norton Rose saying that due to the unavailability of their counsel they were intending to ask for the hearing of 18 May 2011 be taken out of the list.

This caused further concern to RM about the way that Mr Benson had apparently been conducting the litigation, leading to RM sending to Mr Benson a set of “new systems in place” on 18 May 2011. It is clear from the terms in which the list of points was written that RM continued to believe Lord MacDonald QC was representing him, and that there were outstanding matters in both the Court of Appeal and in the Commercial Court. RM finished by noting that: “It is not right that whilst my parents pay the fees, I have no advice. My family has asked me to ensure that we comply with these failing which I will be forced to withdraw my instructions and they will then engage a lawyer solely of their choice”.

On 20 May 2011 Mr Benson sent to RM a draft letter of instruction to Lord MacDonald QC.

On 22 May 2011 RM emailed Mr Benson asking him to “finalize the bias appeal & the appeal against the October order as early as possible this week.”

On 25 May 2011 Mr Benson forwarded to Mr Sanghvi a copy of an email he claimed to have sent to Commercial Court listing the previous day, pushing for RM’s matter to be relisted. The following day he forwarded a similar email addressed and purportedly sent to the Court of Appeal listing office.

Between 26 May 2011 and 30 May 2011 Mr Benson connected a person to speak to RM on a telephone conference who was introduced as the senior partner of Byrne & Partners, “David”, with whom RM had a 30 to 45 minute telephone conversation about his matter. It would appear that Mr Benson had arranged for an accomplice in the deception to impersonate David Byrne, senior partner of Byrne & Partners, on that telephone call. For the avoidance of doubt, no suggestion is made by RM that any other person from Byrne & Partners was involved in the deception.

On 31 May 2011 Mr Benson forwarded to RM a copy of a letter, purportedly from Lord MacDonald QC to the Registrar at the Civil Appeals Office seeking expedition of RM’s matter.

In early June 2011 Mr Benson communicated that there might be difficulties with Lord MacDonald QC’s availability because he had, apparently, received urgent instructions in relation to “a national security issue”. He claimed to have been in touch with Lord MacDonald QC’s clerks to ensure his availability for RM’s matter, and claimed to be liaising with the Court of Appeal to list the appeal.

In late June 2011 Mr Benson was actively engaging with RM and Mr Sanghvi in developing submissions in relation to the appeal on grounds of David Steel J.’s alleged bias, and the terms of a draft order from the Commercial Court for the continuation of the proceedings, including a stay of the committal order and Bench Warrant.

In early July 2011 Mr Benson informed RM and Mr Sanghvi that Norton Rose had consented to the terms of an order staying the bench warrant and allowing RM the opportunity to demonstrate his compliance afresh. On 5 July 2011 he forwarded to RM and Mr Sanghvi what purported to be a sealed order dated 4 July 2011. He claimed to have attended at court that day “without NR and have not been successful in obtaining a Judge’s signature.” RM was very concerned that, as it appears Mr Benson had explained to him, the order was ineffective without a judge’s signature. As he expressed in an email of 7 July 2011:

“I am worried by this because I only asked to get it signed by a judge as additional security for my travel & to ensure that the other side could not wriggle out of this consent terms,& if I had travelled on the consent form signed between the parties, I am not sure what would have happened to me at the airport. Also I am now aware how long the court is going to take in listing this application & it is obviously eating away the days that I need for my compliance as I am unable to work on it from here.”

On 11 July 2011 Mr Benson forwarded to RM an email purportedly from Norton Rose, confirming receipt of a letter from Byrne & Partners in relation to a payment to Byrne & Partners of £25,000 seemingly required under paragraph 5 of the supposed sealed consent order as security for RM’s attendance at court.

On 19 July 2011 Mr Benson forwarded an email he purported to have sent to the Commercial Court for the attention of Blair J. the previous day.

On 22 August 2011 Mr Benson forwarded an email he purported to have sent to the Commercial Court for the attention of Sales J. in relation to the consent order, as nothing had apparently been heard (Sales J. was not in fact a Commercial Court Judge).

On the same day Mr Benson sent a draft letter of complaint in relation to Sales J. for RM’s approval from which it is apparent that Mr Benson had led RM to believe that the consent order had been put before Blair J. on 8 July 2011, but not dealt with; that Sales J. had become involved on 5 August 2011; that on 12 August and 15 August 2011 Sales J. had given assurances in open court that he would “turn his mind” to the issues; that further assurances had been given by Sales J.’s clerk to Byrne & Partners, repeatedly, that the judge would deal with it, but that the consent order had still not been dealt with.

RM expressed his frustration in an email of 20 August 2011 stating that:

“I am being denied access to travel, to visit my children in spite of such serious riots, & to make proper compliance of my orders. The courts not endorsing the consent order will make me not carry out my compliance in the best possible manner & thereby give the claimant another shot to go after me....Please arrange for the compliance to start at the earliest with each question in each order being answered individually with the necessary documents.”

On 30 August 2011 Mr Benson told RM that on 26 August “Mr Justice Hutchinson” had agreed to deal with the matter unless Blair J. or Sales J. dealt with it, and forwarded to RM an email he claimed to have sent to their clerks to that effect (there is no “Mr Justice Hutchinson”).

On 31 August 2011 Mr Benson then forwarded by email a stamped order of “Mr Justice Hutchinson” confirming – apparently after a hearing at which RM had been represented by counsel - that the order of David Steel J. of 4 October 2011 remained in full force and effect, and that the consent order had been ineffective. The order stated that the parties were to attend the listing office to fix further hearings.

In emails of 10, 15 and 24 September 2011 sent to Mr Benson RM again expressed his frustration at the way be perceived he was being treated by the English court, his belief that David Steel J. had been biased against him, his desire to take further steps to demonstrate his compliance, and the effect this was all having on himself and his family. As he stated in his email of 24 September 2011:

“I am not sure whether you understand the grief and difficulty this situation is causing me, my family & children. If you did understand it I am wondering why my matter is being handled in this manner. My family & we are at breaking point & if this is not resolved just to give me a proper hearing in court with full preparation then we will have to think about other options. I do hope you see where we are coming from because I have now gone through more punishment than the original sentence itself.”

In late September 2011 Mr Benson informed RM that he had now instructed Mr Edward Fitzgerald QC to represent him in place of Lord MacDonald QC, and that there was a hearing listed for 7 October 2011 before the Commercial Court. A draft affidavit was under preparation for that hearing.

On 6 October 2011 Mr Benson informed RM that counsel had written to the court to ask it to direct that the Claimant should show cause as to why the 4 July 2011 consent order should not be adhered to. Later that day he forwarded an email purporting to come from Commercial Court listing communicating that “The Judge” had directed that the Claimant provide written confirmation as to its position on the 4 July 2011 consent order. The following day he forwarded an email purportedly from the court saying that the Claimant had “objected to the course of conduct directed by the Judge” and the parties’ counsel had been directed to attend court at 0930 that day.

It is not clear what then supposedly transpired, but later on 7 October 2011 Mr Benson forwarded to RM a draft skeleton argument in relation to the contentions about David Steel J.’s alleged bias.

RM appears to have been told by Mr Benson that the court had required him to provide an affidavit setting out his commitments over the coming weeks, and a draft was worked on and produced.

On 20 October 2011, Mr Benson sent to RM a purported sealed order of Teare J. dated 17 October 2011 directing that the committal order and bench warrant made on 6 October 2010 [sic] be suspended, and that there be a fresh consideration of RM’s compliance, to be heard by a judge other than David Steel J. RM was required to serve an affidavit detailing his compliance by 9 December 2011.

It then appears from subsequent documents that Mr Benson led RM to believe that Teare J.’s order had been stayed because the Claimant was appealing against it and that there was a hearing before the Court of Appeal on 6 December 2011. It appears that Mr Benson had told RM that the Claimant had delayed serving its appeal skeleton argument, and Mr Benson had as a result requested that the Claimant be debarred from pursuing the appeal.

On 29 November 2011 Mr Benson forwarded to RM what purported to be a skeleton on behalf of the Claimant, bearing the names of the Claimant’s leading and junior counsel.

On 30 November 2011 Mr Benson circulated a “discussion note” in advance of the forthcoming appeal. It then appears that Mr Benson told RM that there would be a Court of Appeal hearing on Friday 6 January, at which he would be represented by Mr Fitzgerald QC.

On 8 January 2012 RM again expressed his frustration at the way his case was being handled, including that he had not been able to speak to counsel instructed on his behalf since October 2010, and that “David” (being David Byrne, senior partner of Byrne & Partners) had not taken more of an interest in the case (presumably a reference back to the telephone conference held in late May 2011 when “David” spoke with RM).

From an email of 15 January 2012 it appears that RM had been told that additional leading counsel had been instructed to give an opinion, but that the promised opinion was late. The same email suggests Mr Benson had told RM that Mr Fitzgerald QC had written to the court. RM instructed Mr Benson to make an application for the stay on Teare J.’s order to be lifted, and on 19 January 2012 Mr Benson told RM that that application was being heard on that same day, forwarding a copy of a note to the court.

On 24 January 2012 Mr Benson emailed to RM an order purportedly made in the Commercial Court by Proudman J. lifting the stay on Mr Justice Teare’s order “as no decision has [sic] given in the appeal heard 6 December 2011”. The order was dated 23 January 2012, but the stamp bore the date “23 July” (Proudman J. is not a Commercial Court Judge).

Mr Benson also forwarded to RM a copy of a letter dated 23 January 2012 purportedly sent to the Director of the UK Border Agency enclosing a copy of Proudman J.’s order and asking for confirmation that “all bench warrants and or orders to detain Mr Mehta had been notified to all staff as being withdrawn.”

On 8 February 2012 Mr Benson forward to RM what purported to be an email from the Civil Appeals office referring to a hearing the previous day, and stating that judgment would be handed down in the presence of counsel the following day, failing which it would be released by email that Friday, with submissions on consequential matters to be made in writing and an order to be “considered made on Monday in the absence of the parties.”

On 10 February 2012 Mr Benson forwarded to Mr Sanghvi what purported to be a judgment from the Court of Appeal (Moore-Bick and Richards LJJ, and Sir David Latham) in relation to the hearing of the Claimant’s appeal against Teare J.’s order. The “judgment” is in Westlaw format, has the citation number [2012] EWCA Civ 409 and records that Mr Edward Fitzgerald QC and Mr James Hines had appeared for RM and Mr Anthony Trace QC and Mr Andrew Ayres for the Claimant appellant. It runs to 6 pages and comprises 37 plausibly reasoned paragraphs.

At paragraph 23 of the “judgment” the court explained the basis of the appeal:

“The Respondent sought and obtained an order that the Committal Order and the Bench warrants be considered afresh on the basis of the apparent bias of the Trial Judge Mr Justice David Steel. The context of this application arose because the parties had agreed in August 2011 to set aside the judgment with a view to obtaining ‘fresh’ compliance. Ultimately although an order was made by the parties by consent the Court using its inherent jurisdiction Ordered the matter be tried given the implicit criticisms of a Judge. That is the matter that went before Mr Justice Teare and the subject of this appeal.”

The judgment concluded that Teare J. had not considered all of the relevant matters in reaching his conclusion, and that his order would therefore be set aside and the matter would have to be remitted to be heard again:

“It is essential that the parties understand that I am not finding that there is no appearance of bias but merely that the judge erred in finding that there was on the basis that he did...Accordingly the parties are invited to provide proposals as regards the future conduct of the matter on the basis that it ought properly be referred back to the Commercial Court. Having said this it will be clear from what I have said above that the Committal Order and Bench Warrant remain in full force unless and until further application is made on the basis of complete information to a Judge of the Commercial Court.” (paragraphs 33 to 35).

Hence by this point Mr Benson had constructed a fiction in which RM was effectively back to square one. He purported to have sent letters to Norton Rose to explore the way forward on 10 and 20 February 2012. On 17 February 2012 he forwarded a copy of the Court of Appeal’s order in unsealed form which he claimed had been provided by the court.

On 21 March 2012 Mr Benson told RM that Gloster J. had set aside David Steel J.’s orders of 4 October 2010. It appears from an email sent by RM the same day that he was told that this was on the grounds of RM’s health at the time of the 4 October 2010 hearing. RM explained that he still wished to consider taking further steps in relation the bias issue, including taking the matter to the ECHR in Strasbourg: “I have suffered separation from my family for sixteen months & counting on a civil matter & there is no remedy for the anguish that we are going through & my right to family life is completely violated. I want to see if there is something we can do about this.”

On 26 March 2012 Mr Benson emailed what purported to be the sealed order of Gloster J.

He then informed RM that the Claimant had lodged an appeal against the order of Gloster J. On 25 May 2012 he forwarded a purported sealed order of the Court of Appeal dated 18 May 2012 upholding Gloster J.’s order, but providing that the matter be brought before the court to consider whether conditions should be applied. Mr Benson then forwarded what purported to be a further sealed order from the Court of Appeal, dated 25 May 2012, applying conditions “pursuant to the Court’s previous Order (dated 18 May 2012)” that RM should pay USD 3,000,000 into court on or before 6 July 2012; should return to the jurisdiction pending the redetermination of his compliance; should surrender his passport; and should serve the evidence in relation to his compliance by 29 June 2012.

Shortly thereafter, Mr Benson sent to RM copies of a letter purportedly sent to the UK Border Agency enclosing the Court of Appeal’s order and seeking confirmation that the UK Border Agency’s records had been suitably updated.

Thereafter considerable steps were taken to seek to demonstrate RM’s compliance. This included visits by Mr Benson and Mr Sanghvi to see RM in Brussels and Antwerp on 1 June and 18 June 2012 respectively to take instructions from him. Various drafts of an affidavit were produced and RM was led to believe that this had, in its final form, been lodged with the Court.

Mr Benson then told RM that the matter was being listed before Dobbs J. and that Mr Fitzgerald QC remained instructed. He subsequently informed RM that a hearing had been held before Dobbs J., and that judgment was awaited. On 6 August 2012 he forwarded an email from the Commercial Court explaining that while Dobbs J. had intended to hand down her judgment on 6 August she was still working on her judgment (Dobbs J. was not a Commercial Court Judge).

Mr Benson forwarded by email on 13 September 2012 what purported to be a judgment of Dobbs J. in relation to applications made concerning the committal order and the bench warrant. The “judgment” was seven pages long, had a neutral citation number and was in Approved Judgment form. The “judgment” stated that RM’s further affidavit still did not amount to compliance, refused his applications, and gave directions for a further affidavit to be served, and for the matter to be brought back before her on 3 October 2012.

Work immediately commenced on producing the further affidavit apparently ordered and to deal with the points raised in Dobbs J.’s “judgment”.

Mr Benson then informed RM that, in the event, the hearing directed for 3 October 2012 had been vacated. On 11 October 2012 he circulated submissions he said had been served by the Claimant and led RM to believe that a hearing had taken place with judgment reserved.

No judgment was handed down, and Mr Benson then reported that an appearance by counsel had been made before Goldring LJ. as Senior Presiding Judge to complain about the delay in judgment being handed down, and that he had issued a ruling, for the attention of Dobbs J. “to reaffirm the need for swift and transparent processes.”

It appears that in the light of this “ruling”, Mr Benson told RM that Dobbs J. had made an order on 6 November 2012 (but not delivered a judgment) requiring RM to disclose certain categories of documents by 7 November 2012. A Ninth Affidavit of RM was then produced dealing with the questions raised, which RM believed had been filed and served.

Mr Benson told RM that a hearing had taken place before Dobbs J. on 19 November 2012, at which he had again been represented by Mr Fitzgerald QC. On 21 November 2012 he emailed to RM wording of a further order which, he claimed, Mr Fitzgerald QC had agreed. The terms of the order required RM to provide by 24 November 2012 information and documents relating to the funding of his day to day living expenses, accommodation, and travel arrangements. The matter was, apparently, to be relisted on 27 November 2012.

A Tenth Affidavit of RM was then prepared and, RM believed, lodged and served, dealing with those questions.

On 3 December 2012 Mr Benson forwarded to RM an email purportedly from the clerk to Dobbs J. explaining that her ruling would be circulated that day, and that she had “updated the Presiding Judge as to her progress and he has requested that he be kept informed updated [sic] as regards progress later today”.

Nothing was apparently received from Dobbs J., and on 28 December 2012 Mr Benson sent to RM a copy of an “appeal submission” he claimed Mr Fitzgerald QC had drafted to be placed before the Court of Appeal in relation to the delay in the handing down of Dobbs J.s’ decision.

Mr Benson then provided RM with a copy of an order apparently made by the Court of Appeal on 10 January 2013 providing that certain consequences would follow if Dobbs J. did not hand down her judgment before 18 January 2013.

On 29 January 2013 Mr Benson told RM that there had been a hearing before the Court of Appeal on that day at which the setting aside of the committal order and the direction for an expedited hearing before a judge other than Dobbs J. had been debated. This led to consideration of the position in emails between Mr Benson, Mr Sanghvi and RM prior to a hearing before the Court of Appeal Mr Benson had told them would take place on 4 February 2013.

During this period a telephone conference took place between Mr Benson, RM, Mr Sanghvi and someone impersonating Mr Fitzgerald QC.

Subsequently (although not until 28 March 2013) Mr Benson provided RM with a copy of the sealed order he said had been made by the Court of Appeal on 30 January 2013. The terms of the order included that Dobbs J.s’ determination should be set aside and the matter remitted to the Commercial Court, and that RM’s application to re-enter the jurisdiction should be permitted subject to certain conditions, including that he lodge security of USD 1.5 million to the Supreme Court Costs Office, and that he surrender his passport within 24 hours of entry into the jurisdiction.

In late February 2013 Mr Benson led RM and Mr Sanghvi to believe that the matter was before Popplewell J. and that an order was being drawn up providing that unless the Claimant filed and served a witness statement by 15 March 2013 “detailing any and all documents which it is alleged the 2^nd Defendant has failed to disclose pursuant to the Orders of Master Miller dated 16 January 2007 and Mr Justice Steel dated 6 October 2009” it would be ordered that RM had complied with the said orders. A purportedly sealed order of Popplewell J. to this effect was then forwarded to RM by Mr Benson.

On 15 March 2013 Mr Benson forwarded a witness statement purportedly made by Mr Walton of Norton Rose dated the same day, as provided for in Popplewell J.’s order, explaining why the Claimant contended that RM had not complied with his disclosure obligations.

Work then commenced on an affidavit from RM in reply to the statement he believed had been served on behalf of the Claimant and various drafts were produced. Mr Benson was instructed to serve the evidence in affidavit form on 22 March 2013.

Mr Benson then led RM to believe that there had been a hearing before Popplewell J. on about 11 April 2013, leading to an order requiring RM to give further affidavit evidence, the draft terms of which Mr Benson communicated on 12 April 2013.

On 25 April 2013 Mr Benson forwarded to RM an email purportedly from Mr Walton of Norton Rose requesting a change to the timetable ordered by Popplewell J. He then claimed to have spoken to Mr Fitzgerald QC about it who advised that RM should not serve his own evidence until the following week.

The affidavit which RM believed he had been ordered to provide by Popplewell J. was then finalised on 1 May 2013.

RM was led to believe that a hearing then took place before Popplewell J. on 8 May 2013, with judgment reserved. This was, RM believed, the hearing at which the affidavits he had sworn in the period since October 2010 would be considered in order to determine whether he had complied with his disclosure obligations under Master Miller’s 16 January 2007 order. Subsequent to that supposed hearing, a further telephone conference was held with someone impersonating Mr Fitzgerald QC.

On 15 May 2013 Mr Benson forwarded an email purporting to come from the clerk to Popplewell J. requesting his and Mr Walton’s attendance in chambers to assist him with documentation “to ensure his notes are reconciled to the specific documents referred to and that his judgment deals with all the relevant points”.

On 21 May 2013 Mr Benson forwarded another email purportedly from Popplewell J.’s clerk saying that judgment would be handed down at 1630 that day. He later reported back to RM that Popplewell J. had found RM in contempt and had handed down a bench warrant. Orders purportedly sealed and signed by Popplewell J. were forwarded on 5 June 2013.

RM instructed Mr Benson to lodge an appeal against the orders of Popplewell J., and on 16 July 2013 Mr Benson forwarded a draft Court of Appeal skeleton argument which he claimed had been drafted by Mr Fitzgerald QC.

On 16 July 2013 Mr Benson told Mr Sanghvi that the hearing before the Court of Appeal was due to be that Thursday.

On 28 August 2013 Mr Benson circulated by email what purported to be a copy of Popplewell J.’s judgment of 28 May 2013. This appeared to have been taken from Westlaw, had a neutral citation number and ran to five pages.

On 30 September 2013 Mr Benson emailed to RM and Mr Sanghvi a copy of a sealed “order” of the Court of Appeal upholding Popplewell J.’s order of 28 May 2013, and a copy of what purported to be the judgment of the Court of Appeal (Jackson, Arden LJJ and Sir Scott Baker). This was again in Westlaw format, had a neutral citation number and ran to four pages.

A further witness statement on behalf of RM was then drafted and forwarded to Mr Benson on 28 October 2013.

In early November 2013 Mr Sanghvi, at the request of RM’s parents, chased Mr Benson for a transcript of the hearing before Popplewell J. This was not forthcoming, and RM chased again on 20 and 28 November 2013. On 2 December 2013 RM instructed Mr Benson to provide Mr Sanghvi with the dates of the hearing so he could chase the transcribers. He chased him again on 3 December 2013: “My parents have been extremely upset that it’s been three months that we have not moved forward due to the fact that we are waiting for transcripts. In the light of this it’s best I withdraw my instructions to your firm as it’s causing too much friction as well as delay in my matters.”. Mr Sanghvi chased Mr Benson to similar effect on 4 December 2013.

On 9 December 2013 Mr Benson finally sent through what purported to be a transcript of the hearing before Popplewell J. on 28 May 2013. He promised to forward the Court of Appeal transcript subsequently, but this did not ever materialise. Mr Sanghvi raised with Mr Benson a number of anomalies in relation to the transcript.

Nothing further was heard from Mr Benson after 9 December 2013.

By now, RM and Mr Sanghvi had grown suspicious of what they have been told by Mr Benson, and in particular the delay in providing the transcripts of the hearings before Popplewell J. and the Court of Appeal. From 9 December 2013 Mr Sanghvi’s firm started to make its own enquiries directly with the Commercial Court and Court of Appeal. It was in the course of these investigations that the Commercial Court and Court of Appeal confirmed that the various hearings, orders, judgments etc. since the 4 October 2010 hearing had been fabricated by Mr Benson.

Mr Sanghvi’s firm also made enquiries of various counsel said to have been instructed since October 2010. The clerks to Mr Fitzgerald QC, Mr Owen QC and Lord MacDonald QC all confirmed that they had never been instructed on RM’s matter.

On 20 December 2013 Mr Sanghvi contacted the Police, and on 9 January 2014 he contacted the SRA to explain what had been discovered about Mr Benson’s conduct.

The deception practised by Mr Benson over a period of more than 3 years, as summarised above, is rightly described as breathtaking. Until the Police and the SRA have concluded their investigations much remains unclear, including his motives. What is clear, however, is that his actions will have had a significant effect on RM (and his family) who has been strung along for more than 3 years in attempts to challenge the ACO and apparent subsequent court orders and in efforts to demonstrate that he has complied with the order of Master Miller of 17 January 2007. Throughout this time RM has been effectively been prevented from entering this jurisdiction causing obvious distress to himself, his partner and his children (who live in the UK).

The motives for Mr Benson’s actions are presently unclear. The only payment made on behalf of RM during this period is the payment of £25,000 made to Byrne & Partners pursuant to the supposed consent order dated 4 July 2011. This has now been returned. None of the other payments called for in purported court orders were made. There is some evidence that other payments may have been made to Byrne & Partners but, if so, not by or on behalf of RM. There is also some evidence of a bitter family feud and of parties who might have an interest in ensuring that RM failed in all aspects of the English court litigation. However, at present this is all speculation. Matters will no doubt become clearer as a result of the Metropolitan Police and SRA investigations.

Rule 3.1(7) provides as follows:

“A power of the court under these Rules to make an order includes a power to vary or revoke the order.”

All of the orders which are sought to be set-aside by the application are orders made under the Rules. That includes the bench warrant of 4 October 2010 which was made under rule 71.8(4) (b).

The authorities indicate that CPR r.3.1 (7) is not to be used to vary or revoke a final order, i.e. an order which, to adopt the definition in section 3.1.9.1 of the White Book 2014 (page 67), determines between the parties the issues which are the subject matter of the litigation and which give rise to a cause of action estoppel between those parties. Generally, a party seeking to challenge such final orders should appeal against the orders, not seek to have them set aside - see, for example, the judgments of the Court of Appeal in Enron (Thrace) Exploration v. Clapp (No.2) [2005] EWCA Civ 1511 and Roult v. North West Strategic Health Authority [2009] EWCA Civ 444, and the judgment of Briggs J. in Kojima v. HSBC Bank plc [2011] EWHC 611 (Ch). None of the orders which RM seeks to have set aside are final orders in this sense. Accordingly, RM submits that the appropriate course is for RM to apply back to the Court to seek to have them set aside.

The Claimant does not dispute the availability of the Court’s jurisdiction under CPR r3.1 (7) in relation to orders such as those sought to be set aside. However, it contends that on the facts of this case the Court’s discretion under the rule is not engaged.

In Tibbles v. SIG plc [2012] EWCA Civ 518 Rix LJ. reviewed the jurisprudence relating to the exercise of the CPR r.3.1(7) power at [27] to [38]. He expressed his conclusions at [39] to [42]:

“[39] In my judgment, this jurisprudence permits the following conclusions to be drawn:

(i)

Despite occasional references to a possible distinction between jurisdiction and discretion in the operation of CPR r 3.1(7), there is in all probability no line to be drawn between the two. The rule is apparently broad and unfettered, but considerations of finality, the undesirability of allowing litigants to have two bites at the cherry, and the need to avoid undermining the concept of appeal, all push towards a principled curtailment of an otherwise apparently open discretion. Whether that curtailment goes even further in the case of a final order does not arise in this appeal.

(ii)

The cases all warn against an attempt at an exhaustive definition of the circumstances in which a principled exercise of the discretion may arise. Subject to that, however, the jurisprudence has laid down firm guidance as to the primary circumstances in which the discretion may, as a matter of principle, be appropriately exercised, namely normally only (a) where there has been a material change of circumstances since the order was made, or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated.

(iii)

It would be dangerous to treat the statement of these primary circumstances, originating with Patten J (Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch) and approved in this court (Collier v Williams [2006] 1 WLR 1945), as though it were a statute. That is not how jurisprudence operates, especially where there is a warning against the attempt at exhaustive definition.

(iv)

Thus there is room for debate in any particular case as to whether and to what extent, in the context of principle (b) in (ii) above, misstatement may include omission as well as positive misstatement, or concern argument as distinct from facts. In my judgment, this debate is likely ultimately to be a matter for the exercise of discretion in the circumstances of each case.

(v)

Similarly, questions may arise as to whether the misstatement (or omission) is conscious or unconscious; and whether the facts (or arguments) were known or unknown, knowable or unknowable. These, as it seems to me, are also factors going to discretion: but where the facts or arguments are known or ought to have been known as at the time of the original order, it is unlikely that the order can be revisited, and that must be still more strongly the case where the decision not to mention them is conscious or deliberate.

(vi)

Edwards v Golding [2007] EWCA Civ 416 is an example of the operation of the rule in a rather different circumstance, namely that of a manifest mistake on the part of the judge in the formulation of his order. It was plain in that case from the master's judgment itself that he was seeking a disposition which would preserve the limitation point for future debate, but he did not realise that the form which his order took would not permit the realisation of his adjudicated and manifest intention.

(vii)

The cases considered above suggest that the successful invocation of the rule is rare. Exceptional is a dangerous and sometimes misleading word: however, such is the interest of justice in the finality of a court's orders that it ought normally to take something out of the ordinary to lead to variation or revocation of an order, especially in the absence of a change of circumstances in an interlocutory situation.

[40] I am nevertheless left with the feeling that the cases cited above, the facts of which are for the most part complex, and reveal litigants, as in Collier v Williams [2006] 1 WLR 1945, seeking to use CPR r 3.1(7) to get round other, limiting, provisions of the civil procedure code, may not reveal the true core of circumstances for which that rule was introduced. It may be that there are many other, rather different, cases which raise no problems and do not lead to disputed decisions. The revisiting of orders is commonplace where the judge includes a “Liberty to apply” in his order. That is no doubt an express recognition of the possible need to revisit an order in an ongoing situation: but the question may be raised whether it is indispensable. In this connection see the opening paragraph of the note in the White Book at para 3.1.9 (Civil Procedure 2012, vol 1, p 60) discussing CPR r 3.1(7), and pointing out that this “omnibus” rule has replaced a series of more bespoke rules in the RSC dealing with interlocutory matters.

[41] Thus it may well be that there is room within CPR r 3.1(7) for a prompt recourse back to a court to deal with a matter which ought to have been dealt with in an order but which in genuine error was overlooked (by parties and the court) and which the purposes behind the overriding objective, above all the interests of justice and the efficient management of litigation, would favour giving proper consideration to on the materials already before the court. This would not be a second consideration of something which had already been considered once (as would typically arise in a change of circumstances situation), but would be giving consideration to something for the first time. On that basis, the power within the rule would not be invoked in order to give a party a second bite of the cherry, or to avoid the need for an appeal, but to deal with something which, once the question is raised, is more or less obvious, on the materials already before the court.

[42] I emphasise however the word “prompt” which I have used above. The court would be unlikely to be prepared to assist an applicant once much time had gone by. With the passing of time is likely to come prejudice for a respondent who is entitled to go forward in reliance on the order that the court has made. Promptness in application is inherent in many of the rules of court: for instance in applying for an appeal, or in seeking relief against sanctions (see CPR r 3.9(1)(b)). Indeed, the checklist within CPR r 3.9(1) must be of general relevance, mutatis mutandis, as factors going to the exercise of any discretion to vary or revoke an order.”

RM contends that this is a case which involves the “primary circumstance” of a “material change in circumstances”, that it is undoubtedly “out of the ordinary” and that the court’s discretion is accordingly engaged.

In relation to the exercise of that discretion, RM contends that in circumstances where there is good reason to believe that his then solicitor was acting against RM’s interests at the time that the orders were made, it would be just and in accordance with the overriding objective to set aside those orders. RM also points out that contempt proceedings are to be regarded as the trial of a criminal charge for the purposes of section 6 of the Human Rights Act 1998 - see In the Matter of Ravinder Balli [2011] EWHC 1736 (Ch) at [21]. Article 6(3) ECHR, and its minimum fair hearing rights, is accordingly engaged.

RM also relies by analogy on criminal appeal case law in which a conviction is found to be unsafe as a result of alleged incompetent representation. As is stated in Archbold 2014 at 7-83 citing R v Day [2003] EWCA Crim 1060:

“…in order to establish lack of safety in an incompetence case, the appellant has to show that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe”.

RM also relies on Boodram v The State [2001] UKPC 20, [2002] 1 Cr App Rep 103 in which it was held by the Privy Council that where the failings were so fundamental as to have deprived the defendant of due process, the conclusion would be that the defendant had not had a fair trial and the conviction would be quashed without embarking on an enquiry as to the impact of the failings. As Lord Steyn stated at [39]:

“Where counsel’s conduct is called in question the general principle requires the court to focus on the impact of the faulty conduct: R. v. Clinton (1993) 97 Cr.App.R. 320, [1993] 1 W.L.R. 1181; Sankar v. State of Trinidad and Tobago [1995] 1 W.L.R. 194. On the other hand, as the Chief Justice observed, there may be cases where “counsel’s misconduct has become so extreme as to result in a denial of due process to his client”. The Chief Justice gave examples including the case where counsel conducted the defence without having taken his client's instructions. Substantively, the Chief Justice explained:

“In such a case, the question of the impact of counsel's conduct on the result of the case is no longer of any relevance, for whenever a person is convicted, without having enjoyed the benefit of due process, there is a miscarriage of justice regardless of his guilt or innocence. In such circumstances the conviction must be quashed. It is not difficult to give hypothetical examples of how such a situation might occur.”

Such cases are bound to be rare. But when, exceptionally, they do occur the conclusion must be that there has not been a fair trial or the appearance of a fair trial. Their Lordships would respectfully endorse the formulation of the Chief Justice.”

RM submits that this is not just a case involving incompetence. It is a case of incompetence where there is good reason to believe that RM’s legal representative was acting against his interests at the time.

The Claimant submits that it has not been proved (1) that there has been a material change of circumstances; or (2) that any such change of circumstances caused orders to be made that otherwise would not have been made; or (3) that this is an appropriate case for the court to exercise its discretion to set aside its earlier orders.

It points out that Mr Benson’s fraud in relation to the conduct of the fictitious litigation (“the litigation fraud”) occurred after the orders which are sought to be set aside and is therefore not in itself material. What needs to be proved is fraud in relation the conduct of the real litigation (“sabotage fraud”) and that this cannot be proved, nor is it suggested that it can be on the materials before the court which are, moreover, being considered in the context of a summary procedure. The highest it is put is that there is “good reason to believe” that Mr Benson was acting against RM’s interests and that is insufficient.

The Claimant relies by analogy on CPR r.52.11(3)(b) which states that the appeal court will only allow an appeal on the grounds of procedural unfairness or irregularity where the decision of the lower court “was” “unjust because of a serious procedural or other irregularity”. This requires, it submits, proof that there was an irregularity; not proof that there may have been.

The Claimant further emphasises the need to show that the conduct impacted on the decision made, and submits that this is not made out in this case.

The Claimant further submits that even if the court’s jurisdiction under CPR r.3.1(7) is engaged this is not an appropriate case for the court to exercise its discretion given, in particular, the fact that RM is “a judgment debtor and enforcement resistor of the worst type”, as judicially found. It places particular reliance on David Steel J.’s observations in his judgment of 4 October 2010 in which he dealt with the terms of the ACO at [8]:

“So far as the sanction is concerned, I make these observations. This is a worrying case in the sense it is a disturbing commentary on the powers of enforcement of this court. The relevant judgment was handed down nearly a decade ago and despite the defendant recognising his ability to meet the judgment not a cent has been paid. As I have said in my judgment, the defendant has, to the contrary, embarked on a prolonged and expensive campaign to avoid payment and resist the enforcement procedures and a significant part of this process has been the persistent and the flagrant refusal to produce the documents required by the order of Master Miller over a pretty long period.”

I accept that there is no evidence to show that Mr Benson’s alleged misconduct had any impact on court orders other than the SCO and the ACO. Indeed there has been no attempt to show any specific link between his conduct and those orders, nor has any specific criticism been made of Mr Benson’s conduct in relation to those orders. In those circumstances I accept that it has not been proved that there has been any material change in circumstances relevant to those orders or that this is otherwise an appropriate case for the court to set them aside.

Detailed submissions as to alleged misconduct have, however, been made in relation to both the SCO and the ACO.

RM’s submissions are based on the documents and the evidence of Mr Sanghvi. I have not received any evidence or representations from Mr Benson or Byrne & Partners. It also appears that RM may not have been provided with the full files of Byrne & Partners. Any findings I make on the evidence currently before the court for the purpose of the present application must be understood in the light of those limitations.

In relation to the SCO the key criticisms made are as follows:

The essence of the criticisms made is that Mr Benson’s failures allowed an unfairly prejudicial picture of RM to be built up and that he was severely prejudiced in his preparations for giving evidence and in the presentation of his case at the April and July 2009 hearings.

Even if one accepts all the criticisms made there are a number of difficulties with RM’s case. In particular:

It is also relevant to bear in mind that throughout this period RM was represented by counsel. Moreover, on appeal he was represented by leading and junior counsel and, as is apparent from the Court of Appeal judgment, every possible point which could be taken was taken. At least some of the above complaints/criticisms would have been apparent by then, but they were not raised on appeal.

Further, these events also took place at least 15 months before the commencement of the fictitious litigation and the first proven instance of fraud by Mr Benson. Whilst there is some force in RM’s general point that it is inherently unlikely that Mr Benson’s fraud suddenly commenced on 5 October 2010, that is a stronger point the nearer in time one comes to October 2010.

Even if one accepts that there was misconduct by Mr Benson as alleged, in all the circumstances I am not satisfied that it has been shown that there is good reason to believe that he was acting against the interests of RM at that time. It has also not been shown that such misconduct impacted the order made.

For all these reasons I am not satisfied that it has been shown that there has been a material change in circumstances or, if there has been, that it is sufficient to warrant setting aside the SCO, an order upheld on appeal.

In relation to the ACO the key criticisms made are as follows:

Mr Sanghvi summarises the position as follows:

“530.

In summary, in my view the conduct of Mr Benson in relation to the hearing of 4 October was extraordinary. Simply put, having been instructed to apply for an adjournment, he did not instruct counsel to do so but merely attended the hearing, told the court he was without instruction, and “placed before…the court” the further medical report of 29 September, details of the application that took place in India, and the affidavit sworn by Rajesh’s mother explaining his ill health. What is more, as I have explained above, he had not done the things he had been instructed in the 12 months or so prior to that hearing to try to ensure that the court could be persuaded of Rajesh’s compliance with Mr Justice Steel’s order of 1 October 2009.”

The evidence presently before the court justifies the criticisms made. These include a failure to prepare evidence for the hearing as instructed and advised by counsel; a failure to apply to the Court for an adjournment of the hearing on the grounds of RM’s serious ill health; misrepresenting the position in relation to the fixing of the hearing; giving the false impression on 24 September 2010 that an adjournment had been sought but refused by the Court; delaying in providing important evidence from the Claimant to be considered by the Court at that hearing; failing to ensure that there was any evidence in response; failing to instruct counsel to attend the hearing; wrongly informing the Court at the hearing that he was appearing without instructions; failing to follow those instructions by seeking an adjournment and, if that was refused, making positive submissions as to why no committal order should be made.

These criticisms involve serious misconduct by Mr Benson in the preparation for and the conduct of this very important hearing. Notwithstanding David Steel J.’s understandable scepticism towards RM, his evidence and his last minute applications, I am satisfied that these failures significantly impacted on the order made and that an order would not have been made in the same terms had the Court been given a full and accurate picture of the position.

By way of example:

Given my findings as set out in paragraphs 133-135 above and, in particular: (1) the seriousness of the alleged misconduct; (2) the length of time over which it occurred; (3) Mr Benson’s misrepresentations to RM; (4) Mr Benson’s misrepresentation (as to instructions) to the Court; (5) his failure to follow instructions before and for the hearing; (6) his failure to instruct counsel (for whose convenience the hearing had been fixed) and his decision to appear on his own; (7) the fact that his clearly evidenced fraudulent conduct commenced within two weeks of the hearing, and (8) the nature, extent and sophistication of that fraud, I am satisfied that RM can show on the evidence currently before the Court that there is good reason to believe that Mr Benson was acting against the interests of RM in relation to the preparation for and conduct of this hearing.

In the light of my findings on the present evidence as outlined above I am satisfied that RM has shown a material change in circumstances. In addition to the “litigation fraud”, there is evidence of serious misconduct by Mr Benson in the preparation for and conduct of the ACO hearing and good reason to believe that Mr Benson was acting against RM’s interests in that regard. That misconduct had a significant impact on the outcome of the hearing and, had it not been for that misconduct, either no order would have been made (because the hearing would have been adjourned) or an order would not have been made in the same terms. The facts on which the decision was made were also misstated in that the court was wrongly told that Mr Benson was without instructions – a further “primary circumstance” recognised in the Tibbles case.

For all these reasons I am satisfied that in relation to the ACO the case falls within the primary circumstances in which the courts jurisdiction under CPR r.3.1 (7) may be exercised, as explained in the Tibbles case.

The Claimant submits that even if this case does engage the Court’s jurisdiction under CPR r.3.1(7) no setting aside order should be made as a matter of discretion. It relies in particular on the following:

There is force in a number of these points, particular RM’s long history as a judgment debtor and enforcement resistor. However, the point is made on his behalf that it is only “common ground” that he has the means to pay the judgment in the sense that the Indian assets disclosed by him in his affidavit in response to the freezing order should have been sufficient to meet the judgment debt. There is evidence, however, of third party claims to those assets and to resulting difficulties in enforcement. RM’s position is that he does not have assets beyond those already disclosed and that his legal and living expenses are paid by his parents. It is also denied that he is or ever has been an international diamond dealer. It is further denied that he is in breach of the freezing order in failing to provide information in relation to the payment of legal expenses. That applies to expenses paid out of his own funds, but his expenses are not being so paid. RM insists that he can and will demonstrate compliance with the disclosure orders made and the essence of the relief he seeks is to have a proper opportunity to do so, as he thought was being afforded to him during the fictitious litigation. Further, it will be to the Claimant’s advantage to have a clear, definitive and up to date disclosure and asset statement.

In an ordinary case there would be strong grounds for imposing conditions on the exercise of any discretion in favour of RM, as indeed has been done in the past. However, by definition this case is “out of the ordinary”. Indeed it is at the extreme limits of what is “out of the ordinary”. It is a case which raises serious concerns about the circumstances in which the ACO was made and in relation to which it has been shown that there is good reason to believe that RM’s own solicitor, a man who has been shown to be dishonest, was acting against his interests. It is axiomatic that justice must be both done and seen to be done. In the circumstances of the present case in my judgment that requires the setting aside of the ACO unconditionally.

For the reasons outlined above I grant RM’s application in relation to the ACO but refuse the application in relation to all other Court orders.