BCD v Simons Muirhead Burton LLP

I have three applications before me. The first in time is the Claimant’s application dated the 11^th July 2024 for an order that Reynolds Porter Chamberlain [“RPC”] be disqualified from representing the Defendant; Simons Muirhead & Burton LLP [“SMB”] due to a conflict of interest. RPC deny that there is any conflict of interest.

The second application is an application by SMB issued on the 30^th July 2024, for an order that the claim against SMB be struck out under CPR r.3.4(2)(a) and/or (b) and/or (c). In the alternative, SMB seek an order for summary judgment and that the claim be dismissed.

The third application is an application by the Claimant dated 15^th August 2024 for an order compelling SMB to file a Defence which should have been filed and served by 31^st July 2024. The Claimant contends that the failure to serve the Defence and the SMB’s application are an abuse of process.

The Claimant appeared before me in person with the assistance of an interpreter or translator. The Claimant is a Russian citizen and has difficulty in understanding and communicating in English. Mr. Jack Steer, of counsel (instructed by RPC), appeared on behalf of SMB. I am grateful for their submissions.

The hearing before me on 15^th January 2025 concluded at about 4.40pm and I reserved judgment. The next day the Claimant sent me an email stating that there had been procedural irregularities during the hearing and asking that I direct a re-hearing and defer the handing down of my judgment. The Claimant alleged that although an interpreter was appointed to assist him, the interpretation provided was incomplete and inaccurate, leading to material omissions and distortions of the Claimant's submissions; the interpreter’s identity and qualifications were not verified by the Court; the interpreter was not sworn in or affirmed, as required. (Footnote: ¹) The Claimant sent a further email on 17^th January 2025 to similar effect stating that he intended to obtain a transcript and audio recording to show the shortcomings of the hearing.

On the 17^th January 2025 I replied to the 2 emails as follows:

“I have the following comments:

[1] My diary note relating to the interpreter/translator is:

"INTERPRETER - Mr. Dmytro Tupchiienko to attend the hearing for Claimant.

His NRPSI registration number is 17639. He has extensive experience in court interpreting, including for the Ministry of Justice and the   Police.

He has Security Clearance issued 22 May 2024

His Phone number is 07824612873"

These details may well have been provided by you before the hearing. You selected Mr. Tupchiienko.

[2]   Mr. Tupchiienko showed me his pass before the hearing started.

[3] Mr. Tupchiienko was not required to be sworn, by oath or affirmation, as you did not give oral evidence. Oral evidence is not taken on strike out or summary judgment applications.

[4]   In the circumstances, I am not willing to direct a re-hearing of the applications. I (am) not willing to defer the preparation or handing down of my judgment.”

On the 20^th January 2025 the Claimant sent me a further email seeking a re-hearing of the application. I replied repeating my refusal to order a rehearing. (Footnote: ²)

In short, I do not consider that there was any irregularity at the hearing and, in any event, no irregularity which would justify a re-hearing or the deferment of this judgment.

By an application issued on 20th February 2025 the Claimant applied for an order that [1] all future hearings, including the hearing for the formal handing down of the judgment, be held in private and [2] that the I recuse himself. On 24^th February 2025, I granted an anonymity order but refused to make an order that the hearing be held in private or that I recuse myself.

The Claimant is a Russian national resident in the United Kingdom with his family pursuant to the grant of asylum. The Claimant was a public servant and a manager of a branch of a Russian state agency concerned with construction. One of his jobs was the management and implementation of anti-corruption efforts in the construction branch of the Russian Ministry of Defence. The Claimant was also the owner of a substantial company concerned with the laying of telecommunication cables.

The Claimant states that in the course of his duties, he discovered numerous cases of high level corruption, embezzlement and theft which he reported to his superiors and to the authorities. The Claimant states that as a result of this he was targeted by officials and politicians involved in the cases of corruption uncovered by him and he was falsely accused of instructing a lawyer to pass a bribe to an investigator to open an investigation into the matters.

The Claimant states that he was arrested by the Federal Security Service (FSB) on 14th March 2013. Despite the charges being entirely spurious, he was detained and, under torture and ill-treatment, on 26th August 2013 he made a forced and false confession to secure his release from detention and torture. Later, the Claimant sought to retract his confession but was unsuccessful in doing so.

Although released from detention, the Claimant became convinced (and was so advised) that a fair trial was impossible. He decided to leave Russia and the criminal case proceeded in his absence.

The Claimant entered the UK on 23^rd September 2014 applying for asylum at the port of entry. He instructed Blokh Solicitors [“Blokh”] to act for him in his asylum claim. An asylum claim was lodged on 25 September 2015. The claim was successful and the Claimant and his family were granted leave to remain on 29^th October 2015.

The Claimant’s case is that the “asylum file” was substantial and highly confidential and sensitive. The Claimant was concerned that the release of the file or information on the file to unauthorised parties would pose a direct threat to his and his family’s lives and to the lives of witnesses who had been persuaded to give evidence in support of his asylum application. The sole practitioner of Blokh, Ms Tsirlina, agreed that under no circumstances would any information or documents be released to third parties – except by court order. According to the Claimant, Ms Tsirlina agreed and was specifically instructed that she had no right to give the information to anyone except Adrian Berry (counsel) and the relevant Home Office caseworkers,

In 2016 the Claimant instructed Blokh to file a complaint on his behalf with the European Court of Human Rights [“ECHR”]. As indicated above, the Claimant contended that the charges against him were spurious and only arose as a result of his uncovering high level corruption; that his confession was obtained as a result of torture; and that the judicial proceedings were procedurally unfair.

In due course Blokh instructed counsel, Mr. Berry, to advise on and assist in the preparation of his ECHR complaint.

The Claimant’s expectation was that his complaint would be successful and that aided by the ECHR ruling he would obtain a quashing of his conviction in Russia. Thereafter, he and his family would be able to return to Russia and resume their lives.

There was some debate between the Claimant, Blokh, and counsel about the time limit for the filing of the complaint – this being six months from the date upon which the Claimant had exhausted his domestic remedies. The Claimant contended that this deadline began to run on 12th February 2016 when the Moscow City Court dismissed his appeal against his conviction.

The complaint was not filed by the 12^th August 2016. The ECHR refused to entertain the complaint.

The Claimant contends that both Blokh and counsel were negligent in failing to correctly determine the time limit and to file the complaint in good time. Both Blokh and counsel apologised for the failure to file in good time. (Footnote: ³) Efforts were made to formally confirm with the ECHR the reason why it refused to entertain the complaint but these were of no use.

The Claimant instructed Withers LLP to try to salvage his ECHR complaint and to act for him in his professional negligence claim against Blokh. Withers LLP, sent a Preliminary Notice to Blokh dated 27 October 2016. This was acknowledged by RPC on behalf of Blokh on 15 November 2016.

In about March 2017 the Claimant instructed SMB in place of Withers LLP. I shall come to the terms of the Claimant’s retainer with SMB below.

There can be no dispute that the damages against Blokh and/or counsel for the alleged negligence would be based on the loss of the chance of successfully making his complaint in the ECHR. There were two elements to this lost chance: [1] an assessment of the prospects of success in the ECHR; and [2] the prospects of a favourable ECHR ruling being successfully enforced in Russia. (Footnote: ⁴)

It is not disputed that the Claimant and SMB agreed that expert evidence would be needed to deal with the said two elements. What is not agreed is the form that expert evidence should take. I will return to this issue.

On the 30^th May 2018, SMB sent a letter of claim to RPC who were then acting for Blokh. The letter runs to 13 pages and deals, inter alia, with breach of duty, causation and loss. On the same date a letter in similar terms was sent to Bar Mutual Indemnity Fund Limited who were acting for Mr. Berry.

DAC Beachcroft replied on 17^th September 2018 on behalf of Mr. Berry denying the claim. The letter of response runs to 13 pages.

On the 20^th September 2018, Caytons Law replied on behalf of Blokh denying the claim. The letter of response runs to 46 pages. Every aspect of the claim was challenged. In short, Caytons Law asserted that the Claimant had little or no prospect of succeeding with the complaint in the ECHR and had little or no prospect of enforcing a favourable ruling in Russia.

The Caytons Law letter of 20^th September 2018 caused the Claimant particular concern. The letter made extensive comment on the documents compiled for and contained in the Claimant’s asylum application. The Claimant took the view that the documents and evidence had been wrongfully disseminated by Ms Tsirlina contrary to their express agreement. The Claimant regarded the material as highly sensitive and that he and his family were in danger. He felt compelled to find alternative accommodation for himself and his family. Indeed, his case is that such was the urgency he sold the family home for £50,000 less than its true value so that there would be a rapid sale.

On instructions from the Claimant, by letter dated 30^th October 2018, SMB wrote to Caytons Law in relation to the dissemination of the asylum documents asserting that this was a breach of confidentiality and contract and that a further claim for breach of contract, confidence and data protection was intended.

The Claimant contends that SMB unreasonably delayed (by about 4 weeks) in sending the letter of the 30^th October 2018 thereby causing him loss.

Caytons Law replied on 7^th November 2018 denying the Claimant’s contentions and relying on Lillicrap v Nalder & Son [1993] 1 WLR 94 CA in which it was held that where a client sued his solicitor he impliedly waived his claim to privilege and confidence in relation to all matters which were relevant to an issue in the proceedings.

By an email dated 22^nd November 2018 the Claimant wrote to SMB stating that he had made the decision to represent himself in his claim against Blokh and Mr. Berry. and asked for transfer of the full file.

The Claimant sent a letter of claim to SMB dated 9^th December 2018. The letter alleged various breaches of contract. SMB responded by letter dated 28^th February 2019 denying the claim in full. The letter in response also stated that having completed the pre-action phase, the Claimant was free to pursue his claim against Blokh and Mr. Berry either with new solicitors or as a litigant in person. Either way, his claim’s prospects were not affected and it was within the limitation period.

The limitation period for any claim against Blokh and/or Mr. Berry in tort or contract did not expire until August 2022.

In about March 2020 the Claimant filed a complaint about Blokh with the Legal Ombudsman. It appears that the Ombudsman was reluctant to entertain the complaint given that the size of the Claimant’s alleged losses substantially exceeded £50,000 the maximum possible award the Ombudsman could award and given that a civil claim against Blokh remained a possibility. The Claimant pressed the Ombudsman to proceed. On the 12^th February 2024, the Legal Ombudsman provided a final decision awarding the Claimant £50,000.

Against this background, I turn to the applications.

The Claimant contends that RPC should disqualified due to a conflict of interest. He states that RPC previously represented Blokh in the professional negligence claim where they had access to confidential information. In his supporting witness statement dated 11^th July 2024, the Claimant states that the letter of 30^th May 2018 from SMB to RPC included the letter of claim and all relevant documents. RPC replied stating that they acted for Blokh. As stated above, RPC ceased acting for Blokh and Caytons Law acted instead.

The Claimant refers to the Solicitors Regulation Authority rules which state that solicitors must avoid situations that can lead to a conflict of interest. The Claimant cites the rule: “A conflict of interest can also arise relating to a client if you are acting for another client on a related matter”. (My emphasis).

Finally, the Claimant asserts that the continued representation of SMB by RPC poses a significant risk of undermining the trust in the judicial process, as any court decision could be questioned by either party.

In argument, the Claimant submitted (through his interpreter) that RPC should be excluded [1] because they had received all the documents in the case – which was an unfair advantage; [2] because RPC were in possession of documents in the case; and [3] because RPC had violated the General Data Protection Regulation.

I regard the Claimant’s application as misconceived. The first point to note is that RPC have never acted for the Claimant and there is no evidence that they did. He was never an RPC client and RPC never owed him any fiduciary duty. In argument, the Claimant told me that in September 2016 Vlad (his interpreter and representative) made contact with a partner of RPC (a Ms Howell) and provided her with a chronology and main points of the proceedings. (Footnote: ⁵) RPC deny that Ms Howell was provided with any documentation given that she did not join RPC until 2018. In any event, the Claimant told me that the RPC response to the approach was that they did not act for individual claimants but only acted for defendant legal professionals.

I should add that the Claimant states that he has been asking RPC for the return of the documents provided to them by Vlad but has not received any satisfactory reply. The Claimant also states that RPC should reveal what they have disclosed and to whom.

I accept that where there was been no solicitor/client relationship between Party A and Party B’s solicitor, the court may intervene where Party B’s solicitor has otherwise come into possession of Party A’s confidential information. However, Party A would have to show that [1] the solicitor has in its possession confidential information relating to Party A’s affairs which is relevant to the dispute with Party B; [2] without the court’s intervention it is likely that the confidential information will come into possession of Party B; [3] there is a real risk of prejudice to Party A from Party B’s solicitor having had access to that confidential information; i.e. a real risk that the confidential information will be misused during the dispute with Party B; see Glencairn JP Holdings v Product Specialities Inc [2020] EWCA Civ 609.

In my judgment, the Claimant cannot satisfy the above requirements. He has not identified the confidential information or its relevance or why the court’s intervention is needed. He has failed to identify any real risk of prejudice.

In correspondence the Claimant has referred to his belief that RPC has seen his medical records and the content of his asylum application while representing Blokh and that this amounts to a conflict of interest. Mr. Steer submits that even if they had seen the documents, the medical records are not relevant to the present proceedings; nor could they conceivably be misused by RPC and/or SMB during these proceedings in turn prejudicing the Claimant’s position in these proceedings. The same applies to the asylum application. In addition, the asylum application would form part of disclosure in these proceedings given the dissemination allegations against Blokh and SMB. I accept these submissions.

Mr. Steer submits that the Claimant has wrongly conflated the court’s jurisdiction to intervene when a conflict arises and data/GDPR claims. As far as the alleged violations by RPC of GDPR rules are concerned, these are irrelevant and do not form part of the present proceedings. I accept Mr. Steer’s submissions.

In his second witness statement dated 17^th December 2024, Mr. Ainsworth, of RPC, makes the point that should this case proceed to trial it would be subject to disclosure and the parties, including RPC, will therefore have equal access to the information / documentation relevant to this claim. For the present, he states that he has not reviewed and does not have access to the previous file in which RPC acted for Blokh.

In the circumstances, I shall dismiss this application. There is no conflict of interest. I shall record in my order that the application is totally without merit.

Mercifully, this application can be dealt with shortly. The Claimant completely overlooks the operation of CPR r.3.4(7) and CPR r.24.4(4). These rules provide that if a defendant applies to strike out a claim or applies for summary judgment, the defendant need not file a defence before the hearing of the application.

The Claimant alleges abuse of process and violation of his rights in the failure to file a defence and in making the of the SMB’s application. I reject that allegation. SMB’s application is perfectly properly made.

Accordingly, I shall dismiss this application. I shall record in my order that the application is totally without merit.

The claim form, issued on 12^th June 2024, is concise. The brief details of claim are:

“[BCD] seeks compensation due to the defendant’s failure to fulfil contractual obligations, specifically the provision of expert reports necessary for a lawsuit. The claimant was forced to abandon the lawsuit and suffered financial and non-material losses….”.

The claim form puts the value of the claim at £7,262,427.19.

The Particulars of Claim run to 98 paragraphs and exhibit a 209 page bundle. The Particulars of Claim are in narrative form and do not comply with CPR 16.4(1)(a) which provides that Particulars of Claim must include a concise statement of the facts on which the claimant relies.

If this claim were to continue to trial, there would have to be substantial amendment to the Particulars of Claim so that the trial judge would not have to trawl through the pleading to work out the Claimant’s case. In fact, the case will not be proceeding to trial as it is fundamentally flawed and no amendment could cure the defect.

As far as SMB’s application for summary judgment is concerned, I remind myself that it is not for the Claimant to show that he will win his case at trial. It is for SMB to show that the Claimant has no real prospect of succeeding on the claim. As is well known, a fanciful prospect of success will not do.

The court must not embark on a mini-trial. However, this does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: see: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [10].

As already indicated, there is no dispute that expert evidence was necessary in order to formulate the letter of claim. However, the Claimant’s case is that SMB had also agreed to obtain two expert opinions – one assumes compliant with CPR Part 35 – which were to be used in a lawsuit against Blokh and Mr. Berry.

The Claimant pleads at paragraph 14f the Particulars of Claim:

“14 f The parties agreed that the price of £30,000 included two expert opinions, which were to be used as primary evidence in the subsequent case against Blokh Solicitors.”

At paragraph 35 he pleads:

“35.

The Claimant hired SMB to prepare a letter of claim and obtain two expert opinions that would in accordance with the agreement satisfy the agreed upon provision of evidence. SMB delayed the preparation of the claim for over a year, citing ongoing work with the experts, and ultimately refused to provide the expert opinions. The Claimant has a clear budget and understanding that having the expert opinions in addition to a written acknowledgment of error from Blokh solicitors would allow him to approach litigation funds for financing the legal costs in a claim for professional negligence.”

Mr. Polyakovsky states in his witness statement that the fixed price agreed between the Claimant and SMB included "all pre-litigation procedures, including the drafting of a letter of claim, and expert reports that were to be used as evidence in the subsequent litigation process on the matters agreed upon by the parties."

Against this, Mr. Ainsworth sets out the history showing the scope of the retainer.

On 3rd March 2017, the Defendant emailed the Claimant with an estimate of its costs for each stage of proceedings, from the pre-action stage all the way through to trial. This email set out the following in respect of the estimated pre-action costs and the scope of the work that would be undertaken at that stage:

“Given that, as discussed in the meeting, this is a “loss of chance” claim (i.e. the loss of the chance to bring the ECHR claim, given there is no guarantee that (a) it would have been successful, and also (b) that it would definitely be enforced in Russia), there will be a fairly high element of expenditure at the outset.

The email went on to set out the following in respect of the estimated costs of the later, post-issue expert reports phase and the scope of the work that would be undertaken at that stage:

“Although it is unlikely that the Court will order expert reports concerning the standard of services from solicitors/counsel, it may be that formal evidence is needed about aspects of the “loss of chance” (as referred to in the “pre action” stage above) and also about the financial element of the claim.

To include:

Each party instructing a single independent expert

Review of reports / further questions

Estimate: £35,000 - £50,000.”

There were negotiations about fees and the scope of the SMB retainer. By email dated 26th June 2017, SMB reiterated the work that it proposed to undertake and the fees that it proposed to charge. The email stated:

“1.

We are working on an agreed fee of £30,000 (including VAT) for all the work on the pre action stage of proceedings, as set out in detail in my email of 24 April - a copy of which is attached here (along with the relevant email chain). You will not be subject to any bills in excess of £30,000 for the pre-action stage of the case, apart from the caveats already expressed.

2.

The £6k was a payment on account of our costs - as per my emails of 25 and 26 April (included in the chain attached). It is not a specific payment for just the letter of claim. We did not agree any specific figure for the letter of claim; it forms part of the overall £30,000, which is for all work relating to the preaction stage of litigation.

It might be that there is a misunderstanding between us about the nature of the letter. All of the work that we have carried out to date (and that we had planned to continue doing but will now hold off from until we have resolved the fee situation) is ultimately going towards the preparation of that letter. This includes:

Following these negotiations, SMB’s retainer was formalised in a letter dated 24^th July 2017, entitled “Revised short form terms of business.” The letter stated, inter alia, that the Claimant had instructed the Defendant to “conduct all necessary work for the pre-action stage of proceedings, for your professional negligence claim against Elena Tsirlina (sole practitioner at Blokh Solicitors) and potentially also Adrian Berry at Garden Court Chambers. This will include preparing a letter before claim and engaging in pre-action correspondence with you opponent(s) representatives”. (My emphasis).

The letter noted that: (a) “we have agreed that you will pay a fee of £30,000 (incl VAT) (“the Agreed Fee”) in relation to the pre-action work (i.e all work, to include all correspondence with the other side, before we commence drafting the Claim Form and Particulars of Claim”; (b) “the Agreed Fee includes all disbursements (i.e counsels’ fees/expert fees etc.) apart from mediation costs (including mediators fees and venue hire) and translation fees”; (c) if the case could not be resolved at the pre-action stage, then the Defendant would negotiate a further fee with the Claimant for the next stage(s) of proceedings (which had been summarised in the SMB’s email of 3rd March 2017). (My emphasis).

Given the terms of said correspondence, which sets the scope of the SMB’s retainer, I do not consider that the Claimant has a real prospect of establishing that separate expert reports – which might have been necessary for a different phase of the proceedings were agreed as part of the pre-action stage. The Claimant understood that “SMB were contracted to undergo the initial pre-litigation procedure and prepare the evidence.” Indeed, the Claimant reserved the right to use other solicitors to take the case to court. (Footnote: ⁶)

I should add that experts were used in the preparation of the letter of claim. Mr. Ainsworth states that between June 2017 and December 2017 the Defendant obtained the following input from experts (Footnote: ⁷):

By email dated 16th November 2017, in response to a suggestion from the Claimant (via his interpreter/representative) that he considered that there were difficulties in proceeding further with drafting the letter of claim, the SMB set out in detail the remaining work to be carried out, which did not include any suggestion that formal expert reports would be obtained.

In an email exchange between the Claimant and SMB on 8th December 2017 in respect of Ms Makarova’s expert input. SMB made absolutely clear that she had not at that stage been retained to provide evidence to the court in the proposed claim, stating:

“Marina is not familiar with all the facts of the case as she has not been instructed as an expert to review the full case. As you know, she was instructed to give specific advice on procedure and she has offered to answer more questions, based on the factual details of the case which she is to discuss with Svetlana, who is familiar with these facts. Should we ever decide to have Marina give evidence to the court, she would have to be properly instructed as an expert and will thereafter have to read into the case.”

The Claimant (via his interpreter) responded, criticising the content of Ms Makarova’s input but expressly acknowledging the limited scope of her involvement at that stage, stating “….we do understand that Marina was instructed to give specific advice and at the moment you have no plans to have her giving evidence at the Court.”

This aspect of the case can be dealt with quite bluntly. As stated above, the Claimant sent an email to SMB on the 22^nd November 2018 stating that he had decided to represent himself. He had until August 2022 to issue proceedings against Blokh and/or Mr. Berry. The Claimant failed to issue proceedings and has offered no acceptable explanation for that failure. In argument, I asked the Claimant to focus on this fundamental issue but he could not produce any credible explanation for his failure to issue. In the claim form, the Claimant states that he was “forced to abandon the lawsuit”. That allegation has no real prospect of success. He could have issued proceedings, if necessary, acting in person - as he has done in the present proceedings.

In paragraph 55 of the Particulars of Claim, the Claimant pleads:

I consider the assertion that the Claimant lost the opportunity to obtain litigation funding – and more particularly that the Claimant was unable to file the claim, to have no real prospect of success. The Claimant had over 3 years to issue a claim against Blokh and/or Mr. Berry. It is inconceivable that a trial judge could find that SMB caused the Claimant’s loss of opportunity to bring the claim.

The Claimant alleges that the SMB delayed about 4 weeks in sending a letter to Caytons Law in relation to Blokh’s breach of contract and dissemination of the confidential asylum documents. SMB deny any delay on their part and deny causing any loss. In so far as the Claimant had a discrete breach of contract claim against Blokh for the dissemination, the Claimant retained the right to pursue Blokh. In so far as the Claimant had a direct claim for loss against SMB for the delay in sending the letter to Caytons Law (to address Blokh’s dissemination) that claim has no real prospect of success. The Claimant has failed to particularise the losses alleged to arise from the delay. It is difficult to see that any losses were caused. Indeed, the Claimant’s case is that the losses he sustained from the dissemination of the confidential material were devastating and immediate. (Footnote: ⁸) There are additional problems. The Claimant has failed to plead what was disseminated by Blokh and when and how the consequences of Blokh’s alleged dissemination could have been avoided by swifter action by SMB.

In the circumstances, I consider that the Claimant has no real prospect succeeding on the claim and there is no other compelling reason why the case should be disposed of at trial. Accordingly, I shall give summary judgment for the Defendant and dismiss the claim.

A draft of this judgment was sent to the parties on 11^th February 2025.