Martina Yvonne Shand v Peter Edward Kemkers & Ors

By an application dated 13^th May 2025, the Applicant (who I shall refer to as Ms Shand) seeks permission to commence contempt proceedings against six individuals involved, in various ways, with underlying litigation regarding the plumbing in, and/or ventilation of, Ms Shand’s flat (“the contempt application”). The underlying dispute has been ongoing for over 13 years and is unresolved.

Ms Shand has made allegations of the most serious character against the six Defendants (five of whom are lawyers) who have no obvious common interest but who are all alleged to have been guilty of misconduct and indeed to have conspired together to deceive Ms Shand and the court. A pertinent summary can be taken from the Part 8 Claim Form where Ms Shand outlines her case in these terms:

“In addition to the multiple allegations of individual counts of criminal contempt of court, the Defendants, participated in an egregious multi-party fraud on the court. The Defendants deliberately directed the fraud at the court with the intention of interfering with the due administration of justice in order to defeat the Claimant in the 2019 Action and 2020 Action and inflict maximum loss and damage on the Claimant. In furtherance of the fraud on the court and by multiple individual acts in contempt of court, the Defendants dishonestly, individually and collectively, painted a false and misleading picture of which they knew was false and misleading. They persuaded the court to make decisions which they knew to be incorrect, unfair and to the Claimants’ extreme detriment. The Defendants succeeded in interfering with the due administration of justice and have so far escaped justice.”

The Defendants are of a united voice that the allegations against them are wholly unfounded, are based on a non existent multi-party conspiracy, have no prospect whatsoever of being proved, are vexatious litigation and an abuse of the process of the Court. Permission should therefore be refused on the basis that the applications and proceedings are totally without merit. To the extent necessary, they also invite the Court to strike out the allegations on the same basis. The Defendants submit that the true purpose of the contempt proceedings is to air grievances about the outcome of previous proceedings and to continue Ms Shand’s long-running litigation. She has previously settled or discontinued proceedings within which the same allegations were made and her permission applications seek to have a second bite (as the relief sought makes clear) at what was never a cherry in the first place. Also her very serious allegations against the lawyers acting for the opposing party are hopelessly misconceived and reveal a fundamental failure to understand the role/obligations of a lawyer.

By a further application Notice dated 7 October 2025 Ms Shand applied for

By cross applications made on 2^nd, 3^rd and 9^th October 2025 the Defendants seek to strike out the contempt application.

By an application made on 5^th November 2025 in linked proceedings; KB-2025-003500 (the “2025 proceedings”) the 2^nd, 3^rd and 4^th Defendants applied to strike those proceedings out and also, subject to the conclusions of the Court as regards the application for permission, an extended civil restraint order.

The contempt application was listed pursuant to a direction given by Mr Justice Butcher on 1 August 2025 and subsequently, the related applications were listed for the same hearing.

The hearing lasted two days. The first day was taken up with Ms Shand explaining, as best she could, her response to the matter set out in detailed submissions filed on behalf of each of the Defendants. During the course of the day I explored with Ms Shand the issues raised by the Defendants including as to whether she had a collateral purpose for seeking to advance contempt allegations; being the furtherance of the underlying dispute, that she was not a proper person to pursue contempt allegations, the discontinuance/settlement of her 2019 action which contained many of the same allegations now advanced as contempt, the substantial delay in making the applications, the role of professional advocates (and as regard those acting for other parties; the complications of privilege) and the need for a strong prima facie case in respect of an allegation of contempt given that the Court had to be satisfied to the criminal standard. After lengthy exchanges with me, Ms Shand conceded that the application in respect of the 5^th and 6^th Defendants had considerable difficulties. She also conceded that the 5^th and 6^th counts/allegations against the fourth Defendant did not have sufficient merit to warrant permission. During the afternoon, and after a short adjournment, Ms Shand stated that having considered matters raised during the day she accepted that her claims against the 3^rd, 4^th, 5^th and 6^th Defendants were “weak”. She did not formally withdraw her applications stating that it remained a matter for the Court to decide. I indicated at the end of the first day that given what Ms Shand had explained/submitted during the course of the day; unless matters changed i.e. there was something that had not been raised which was the subject of further/extra submissions by Ms Shand having had the chance to consider matters overnight I would not be giving permission to proceed against the 4^th, 5^th and 6^th Defendants who were lawyers representing an opposing party. I asked Ms Shand to reflect upon her position overnight and consider talking to Counsel for the 2^nd-6^th Defendants.

After time for reflection Ms Shand indicated then that she wished to “concentrate” on the permission to proceed against the 1^st and 2^nd Defendants.

Given the indications/concessions made by Ms Shand, Ms Evans KC and Ms Mulcahy KC made submissions in response to the applications focussing on the allegations against the First and Second Defendant. However Ms Mulcahy also addressed the allegations against the 2-4^th Defendants given the application made on their behalf to strike out the 2025 proceedings and the different standard of proof (balance of probabilities) applicable to that application. Mr Wilton KC also made some short and focussed submissions.

Ms Shand presented as little short of crestfallen and overwhelmed and was clearly very upset when it was her opportunity to make any submissions in reply. She said that she considered the way matters had been advanced by Counsel was cruel and that all she wanted to do was seek justice. I stated that whilst I had an obligation to seek to ensure that she had an equal footing with the Defendants and could participate fully in proceedings before the Court there was a limit to what I could achieve given that she was (now) a litigant in person.The court must adopt such procedure at any hearing as it considers appropriate to further the overriding objective and in asking for Ms Shand’s response to the various issues raised by the Defendants (and giving ample time to respond) I tried to help her structure her presentation. However I could not help with the substance of the submissions i.e. the allegations themselves, as the role of a Judge is to fairly adjudicate on merits of cases. The reality is that Ms Shand chose to make contempt allegations against six Defendants five of whom are lawyers. These Defendants were responding to her claim; they did not bring her to Court; it was the reverse position. Having to face a group of highly skilled legal representatives was inevitable given the path she had chosen to take. It was also not the first time she had experienced being overwhelmed by the responses of lawyers for Defendants. She explained that when faced with having to deal with 10 sets of lawyers in the 2019 proceedings she felt similarly overstretched and unable to cope. Again the simple fact of the matter is that Ms Shand chose to issue proceedings against 10 Defendants and must have anticipated that each would respond to the claim given the seriousness of the allegations. A person who is a defendant to civil proceedings has a right to obtain legal representation and that right cannot be legitimately criticised. It is necessary to be able to ensure protection against unmeritorious allegations this being an essential part of ensuring justice for all. It is justice that Ms Shand states she seeks and fair determination of justice requires an equal ability to advance, and respond, to a claim. There was nothing remotely cruel in the highly professional and courteous presentations of the cases by any legal teams on behalf of any Defendant. That they must have appeared to Ms Shand to be an expert demolition of her arguments was because of the lack of merit in those arguments; not because it was wrong to address them or the manner in which they were addressed.

Given that Ms Shand did not formally withdraw her allegations against the 3^rd, 4^th, 5^th and 6^th Defendants and also given the overlap with the application to strike out the 2025 proceedings I shall address the contempt allegations against these Defendants, but will do so relatively shortly. The word relatively is of significance given the amount of material before me. It is not an overstatement that this litigation has clearly taken over much of Ms Shand’s life in recent years. Ms Shand stated in the particulars of contempt that;

“Since July 2023 to present the claimant has invested a substantial amount of her time and energy (all of her available professional time to the 1st of April 2025) investigating, unravelling and documenting a multiparty fraud on the court.”

and

“It was from around July 2023 that I started a very long and I submit essential process of investigation, unravelling, reflection and particulars and painstaking documentation of my findings which eventually resulted in the issue of my contempt application and supporting bundle of evidence.”

In his witness statement Mr Smith (solicitor for the First Defendant) noted that within an interim application for costs Ms Shand has said that she has spent over 400 days working on the applications. A very large amount of material has resulted. The Particulars of Contempt are 226 pages long; and descend far into very fine, and unnecessary, detail of the protracted background history. The supporting affidavit is a further 171 pages long and the 16 exhibit bundles comprise over 10,000 pages and approximately 2,200 documents. The length and extent of the documentation produced for the permission applications follows a pattern. In the 2019 action Ms Shand served an amended claim form and particulars of claim running to 129 pages against 10 defendants (described by Master Marsh as “overburdened by prolixity”) and in an action commenced in 2020 Ms Shand produced particulars of claim which ran to 108 pages. I agree with the observation made in submissions that Ms Shand’s allegations are not lucidly and economically presented and are instead prolix, diffuse, challenging to follow and the Particulars are unworkably long and repetitive.

On any reasonable analysis the contempt allegations Ms Shand seeks to pursue are disproportionate. As I pointed out to Ms Shand in many contempt allegations the Court has found it necessary to restrict the number of allegations which were advanced. A recent example is Weavabel Group Limited v Mr Lance Jamieson Christie[2024] EWHC 2298 (KB) when 59 allegations were relied upon, all save one of which related to derogatory comments. I ordered thatthe Claimant rely upon no more than 20 allegations of contempt (the Claimant subsequently selected 16 allegations of contempt). I explained that:

“the number of allegations which may be pursued at a hearing of a committal for contempt is often necessary to ensure compliance with the overriding objective…”

Ms Shand had been unable to focus on ‘core allegations’ and there is force in the submission that the scope of her applications demonstrates the tendency of her complaints to divide into ever more sub-issues because she is unable to accept evidence to the contrary given her propensity to perceive fraud, dishonesty, and conspiracy as lying behind the actions of others.

During submissions I asked Ms Shand to concentrate on her strongest allegations; her “best shots”.

It was a belated appreciation that her best shots against the third, fourth, fifth and sixth Defendants had missed the permission target of establishing a strong primafacie case that led to her concession that the entire permission applications in respect of these Defendants were weak.

Following the conclusion of the hearing Mr Shand submitted a further statement and additional material in respect of her allegation of a conflict of interest. Given that the Defendants objected to the admission of this evidence as it was produced late, was available/accessible before the hearing and added nothing which provided realistic support. I shall first deal with the evidence adduced for the hearing and then consider the (informal) application to rely on further evidence.

Ms Shand also served a transcript of the hearing before Master Marsh of 27^th July 2020, but this did not alter any conclusions I had already reached whilst preparing the judgment.

I now turn to the relevant background facts

Ms Shand purchased a long lease of Flat 23, The Lab Building, 177 Rosebery Avenue, London EC1R 3TW (“the Flat”) on 26^th March 1999 for £225,000. Berkeley Homes was the developer responsible for the flats and St. James Homes Limited was the landlord (“St James”) until 30^th April 2012 (when Seventy Six Limited became the landlord). OM Limited was the manager of the building (“OM”). The management of the Flat was sub-contracted by OM to Peverel Limited (“Peverel”), later re-named First Port Property Services (“First Port”).

Ms Shand has stated that from 1999 she encountered serious problems with water ingress, and noisome odours and potentially toxic gases coming from the soil stack system serving the Flat. She complained to Berkeley Homes, and made an insurance claim under the terms of an NHBC warranty and received substantial payments in respect of claims made under The Lab Building’s buildings insurance policy between 2005 and 2013.

In 2007 problems with the communal drainage system in The Lab Building emerged. St James appointed Fredericks Hearl & Gray, a firm of Chartered Surveyors, to investigate and work was undertaken to resolve the issue. After completion of the works in early 2008, Ms Shand reported foul smells in the Flat. On 13 February 2009, Edward Hawkins of Fredericks Hearl and Gray inspected Ms Shand’s Flat, accompanied by Ms Shand and Dean Rochester of Peverel.

On 17 February 2009, Mr Hawkins wrote to Mr Rochester setting out his observations. Mr Hawkins noted that no foul smell had been present at the time of the inspection, but that the soil stack in the ensuite bathroom was not fully ventilated. Mr Hawkins recommended that the soil stack be extended in height and a pipe passed through the roof for better ventilation.

A ventilation pipe was installed in the ensuite bathroom in June 2009. It appears that these works resolved the problem as it related to that bathroom. However in September 2009, Ms Shand reported that foul smells were present in the Flat’s shower room. Ms Shand raised the issue again in 2012, having made a Subject Access Request of St James.

The matters set out above were dealt with on behalf of St James by Simon Fairless. The Second Defendant, Mr Kemkers, the Finance Director, took over from Mr Fairless in September 2012.

On 25 October 2012 (so over twelve and a half years before the contempt application was issued) Ms Shand commenced proceedings (“the 2012 Action”) against St James and OM.As Mr Kemkers explained in his first witness statement his approach to Ms Shand’s complaints was to seek to resolve the issues she was experiencing. Mr Kemkers attended a meeting with Ms Shand and Peverel in January 2013, following which Mr Kemkers wrote to Ms Shand stating that the next step was to appoint an independent surveyor to consider whether a ventilation pipe could be installed in the Flat’s shower room. Eamonn Malone was appointed as the surveyor on a joint basis, with his fees paid by St James.

Ms Shand initiated the 2012 Action using solicitorsbut then changed firms and instructed Mishcon de Reya (“Mishcon”) on 19 February 2013 shortly before the expiry of the claim form. The Second Defendant, Mr Levy was the partner responsible for Ms Shand’s claim, although day-to-day conduct was delegated to another solicitor within his team, Mr Jonathan Warren. Ms Shand was to remain a client of Mishcon until May 2016. Particulars of Claim were drafted by counsel, Mr Trompeter and dated 26 June 2013. In marked contrast to Ms Shand’s own pleadings the document was relatively brief (8 pages) and referred to the terms of the demise by St James, the term in the lease concerning quiet enjoyment and also the clauses of the lease placing obligations on OM, including in relation to inspecting, repairing, maintaining and as necessary reinstating or renewing service installations. It was pleaded that OM was in breach of these obligations in respect of the noisome odours and that

“…the manager and/or landlord failed to take any or any adequate steps to remedy…the wants of repair to pipework, and/or cladding and/or the soil stack…”

As regards St James it was pleaded that the failures were a breach of the implied term of non-derogation from grant and of the covenant of quiet enjoyment. Reliance was also placed on the Defective Premises Act. There was no mention of Part H building regulations.

Ms Shand later sued Mr Trompeter for negligence in respect of this pleading. I pause to observe that Ms Evans submitted that parts of Ms Shand’s allegations of contempt against Mr Kemkers proceed on the (incorrect) basis that various allegations in the 2013 Particulars of Claim were clearly aimed at St James.

On 2^nd July 2013, Mr Malone circulated a draft report. The draft report itself is no longer accessible, but Mr Kemkers has set out his recollection of it in his witness statement in response to the application for permission. Ms Shand was unhappy with Mr Malone’s draft and she set out within the Particulars of contempt that it “concealed” obvious contraventions of building regulations.

On 26^th July 2013 OM served its Defence and Counterclaim denying liability.

On 18^th October 2013 St James served its defence. The pleading which was only two and a half pages long contained a statement of truth was signed by a partner at Eversheds Sutherland LLP (“Eversheds”), who had taken instructions from Mr Kemkers. St James denied liability and pleaded that:

“2.

The relevant repairing obligations in the Lease are placed upon the Manager [OM]...Accordingly, while it is admitted that the Landlord [St James] is obliged to give the Tenant quiet enjoyment of the Premises, and not to derogate from its grant...none of the alleged breaches of the repairing obligations are capable even in principle of constituting a breach of either of those pleaded obligations or of any obligation imposed on the Landlord by section 4 of the Defective Premises Act 1972 (as pleaded in paragraph 25.2).”

By paragraph four of the defence, St James further adopted OM’s Defence in respect of each of the alleged defects.

Ms Shand seeks permission to proceed with allegations of contempt against Mr Kemkers in respect of elements of this Defence (eight of the 16 counts against him).

On 22 October 2013, Mr Malone emailed Ms Shand and Mr Kemkers stating that he intended to resign as: “Ms Shand has taken certain steps that makes [sic] it impossible to proceed with my original commission in the manner envisaged”

A Notice of Allocation required Directions Questionnaires to be filed by 25 November 2013. Mishcon failed to do so in time and on 2 December 2013 OM applied to strike out the 2012 Action. On 8 January 2014 Ms Shand’s claim and her defence to the Manager’s counterclaim (for service charges) were struck out by Order of Her Honour Judge Taylor. On 18 July 2014 District Judge Lightman ordered that the claim should remain struck out. On 30 October 2014 Deputy District Judge Arnold dismissed an application to restore the claim and Ms Shand was ordered to pay the costs of the action and the application. It is not necessary to descend into any further details in respect of the striking out of the 2012 action.

From 10^th January 2014 onwards Ms Shand had email exchanges with Mr Levy (as Mr Warren’s supervisor) within which, Ms Shand has alleged, Mr Levy made various misrepresentations and deliberately breached his fiduciary duty. Ms Shand and Mr Levy never actually spoke to each other.

Mishcon terminated its retainer in May 2016.

On 17^th August 2016 Ms Shand made a formal complaint against Mishcon (extending to 113 pages) and Mishcon’s insurers appointed Triton Global Limited (“Triton”), solicitors, to investigate the complaint.

On 14 November 2016 Triton wrote to Ms Shand and made admissions of breach of duty, including that Mishcon had not given appropriate advice, allowing the matter to be struck-out, and of misleading communications from Mr Warren. Triton did not find more serious wrongdoing, stating:

“We conclude…that most of your complaints about poor service and breach of duty are justified. There is prima facie evidence that you were misled by [Mr Warren]…but your claims of dishonesty, deceit and bullying by Mishcon are not established on the evidence we have seen.”

The letter set out losses Triton accepted Ms Shand had sustained and tendered a cheque for £93,820 (which Ms Shand never cashed).

At some stage it appears Ms Shand instructed Withers LLP Solicitors to advise her.

In an e-mail dated 26th September 2017 Ms Shand stated that she was considering bringing legal or regulatory proceedings against 25 different individuals entities and made allegations of fraud. The individuals included Mr Kemkers; this being relevant to the issue of delay in bringing contempt proceedings in relation to the 2012 proceedings.

By an application dated 3 August 2018 Ms Shand sought to re-open the 2012 Proceedings. That application was dismissed and certified as being totally without merit.

On 4^th April 2018 Ms Shand complained about St James, OM and their solicitors to the Financial Ombudsman raising an alleged fraud and conspiracy to defraud in relation to the signing of the defence. Again this is relevant as regards delay and also the choice to pursue this route as opposed to making an application in relation to contempt.

Between 29^th April 2018 and 10^th May 2018 Ms Shand alleged that Mishcon, her own counsel Nicholas Trompeter, Norwich Union, Berkley Homes and OM had committed insurance fraud. She made allegations of fraud against Daniel Levy and Mishcon. This was a year before she issued proceedings.

At some stage during 2018 Ms Shand instructed Counsel, Mr Michael James, through direct professional access. It appears that Mr James, advised her in September 2018 that she did not have a claim in respect of St James’ Defence in the 2012 Proceedings and/or in fraud or unlawful means conspiracy. Ms Shand’s response to receiving that advice was to terminate her contract with Mr James and in due course to add him as a defendant to the 2019 Proceedings. So she made allegations against the Counsel who had advised her.

On 20 June 2019 Ms Shand issued High Court proceedings under claim number BL-2019-001173 (“the 2019 Action”) claiming damages in excess of £1 million. The defendants to the 2019 Proceedings were:

It worthy of note that Ms Shand did not issue against either Mr Kemkers or Mr Levy individually.

On 11^th October 2019 Ms Shand served an Amended Claim Form and Particulars of Claim running to 129 pages. Ms Shand combined allegations in respect of the failure to address issues with the flat with allegations against Mishcon and others of conspiracy by unlawful means. There were also allegations against Mishcon of breach of fiduciary duty, deceit and negligence.

Ms Shand alleged that all the defendants except Withers and Mr James (against whom the claims were in breach of contract and negligence) had participated in an unlawful means conspiracy to injure Ms Shand. The conspiracy was alleged to have been ongoing since 2007 and to have involved multiple phases including a conspiracy to enable St James to avoid liability for the state of the Flat and a conspiracy within the 2012 Action to cover up that first conspiracy. The alleged frauds were

Significantly the alleged unlawful acts included contempts of court by both St James and Eversheds, for making or causing to be made, a false statement of truth on St James’ defence in the 2012 Proceedings (Mr Kemkers being the person who authorised the signing of the statement of truth). Like the current allegations of contempt of court, the conspiracy to sabotage the 2012 Action was described as including misleading statements made to the court and suppression of evidence, amounting both to contempt and to a criminal attempt to pervert the course of justice.  It was submitted within the hearing before me on behalf of the 1^st and 3^rd Defendant these were similar allegations to those which Ms Shand now seeks permission to advance. Although Mr Levy was not personally named as a defendant to the 2019 Action, allegations of fraud and dishonesty against him formed the basis of part of the claims against Mishcon.

Ms Shand alleged that Mr Trompeter had been negligent in his preparation of Ms Shand’s Particulars of Claim in the 2012 Proceedings. Ms Evans submitted that this was clearly inconsistent with what Ms Shand now alleges against Mr Kemkers as Ms Shand pleaded in the 2019 action that “none of the pleaded breaches of repairing obligations were capable in principle of constituting a breach of the three pleaded obligations on [St James]”. If this was the case it is difficult to see what would be wrong in St James denying the breaches in its defence; and therefore what Mr Kemkers had done wrong.

DWF Law LLP (“DWF”) acted for Mishcon in the defence of the 2019 Action. The Fourth Defendant, Mr Bennett (of DWF) was the solicitor with conduct of the action. In due course DWF instructed the Fifth Defendant Mr Smith KC and then, when Mr Smith was suffering from ill-health, the sixth Defendant Mr Chelmick.

St James filed a Defence to the 2019 Proceedings on 13 November 2019. The statement of truth was signed by a solicitor at Mills & Reeve LLP, who had taken instructions from Mr Kemkers. St James denied Ms Shand’s allegations in its Defence. St James’ position was that the claims were liable to be struck out on the basis that the Particulars of Claim were incoherent and did not set out any facts capable of substantiating the alleged causes of action. St James also (i) alleged the claims were an abuse of process, because the allegations made in the 2019 Proceedings could and should have been made in the 2012 Proceedings and (ii) pleaded that various of Ms Shand’s complaints were time-barred.

It is a central pillar within the defendants’ submissions in response to the permission applications that the 2019 Action was in large part withdrawn, discontinued or dismissed and it is plainly an abuse of process of the Court for the allegations made within these proceedings to reappear several years later as allegations of contempt.

Ms Shand has stated that between October and December 2019 she entered into a substantial volume of e-mail communication with the solicitors acting for the 10 defendants and told me during her oral submissions that she was overwhelmed by the work involved. She explained that

“It was in the context of, and as a consequence of the quantity of these communications with the defendants and in the absence of any relief through a requested stay of proceedings which was not agreed, the claimant felt under extreme duress and that there was no other option but to promptly give up many of her claims and causes of action purely to avoid and/or mitigate the possibility of spiralling an unaffordable adverse costs awards against her and the real risk that she might lose everything as a consequence.” (underlining added)

The obvious point to be made is that Ms Shand well knew that she was “giving up” claims based on wide ranging allegations.

Ms Shand served a Notice of Discontinuance dated 25 November 2019 coveringvarious aspects of her claims against Mishcon, OM, St James, Mr Trompeter, First Port, Eversheds and Mr Warren. The matters discontinued included:

“All issues, causes of action for damage and references to “intent to injure the Claimant” and “furtherance of the conspiracy to injure the Claimant by unlawful means” and “perverting the course of justice”; “All issues, causes of action for damages and references to dishonest state of mind”; and “All issues, causes of action and reference to “tort of deceit”.”

On 19^th November 2019 Ms Shand sent an e-mail to Mills & Reeve (acting on behalf of St James) stating that

“I do now appreciate that I am facing a terrible situation with my claim and disastrous consequences which I sincerely regret. Is there anything that your client or you are prepared to do to help I would be very grateful.”

Mills & Reeve pointed out that St James had already incurred costs of £15,875.

On 11^th December 2019, Ms Shand and St James entered into a settlement whereby St James agreed not to seek its costs of the 2019 Proceedings in exchange for Ms Shand agreeing not to pursue any further claims against St James arising out of, or connected with, either the 2019 Proceedings or the same underlying facts. It is worth noting at this point that Ms Evans KC submitted that what Ms Shand is now seeking to do is to avoid the effect of the compromise by seeking to pursue allegations previously made (or which could have been made) against St James, against Mr Kemkers personally. Ms Shand has stated (within the Particulars) that;

“The claimant believes that Mills & Reeve subjected the claimant to illegitimate pressure to settle her claim with St James, especially when considered in the context of the substantial volume of communications with the other defendants during this time...”

As I pointed out during submissions this is an obviously unfair analysis as firstly, St James was responding to a claim, and had not made one and it was a matter for Ms Shand how many Defendants she chose to pursue. Secondly she approached St James’ solicitors and an agreement was reached which was to Ms Shand’s advantage as it got her out of “a terrible situation” and “disastrous consequences” as she was not exposed to an adverse costs order,

The settlement was recorded in a confidential schedule to a Tomlin Order, which was exhibited in full to the contempt application. In her first witness statement Ms Shand stated;

“At this time and in any event from the time I signed the Tomlin order I could not see how it was possible in law to raise another claim against St James or any member of the Berkeley group as a consequence of the Tomlin order I signed.”

Ms Shand now believes that contempt proceedings are a way to “raise another claim” concerning what she considered in 2019, and still considers, to have been the improper conduct of Ms Kemkers on behalf of St James.

Turning to the effect of the discontinuance on the applications against the other Defendants, Ms Shand has stated that she never intended to also discontinue her claim and cause of action against Mishcon for breach of fiduciary duty in relation to the misconduct of Mr Levy (her claim that Mr Levy deliberately misled the claimant by sending misleading communications to her) or in relation to the misconduct of Mr Warren. I shall return to this issue.

The 2019 claim also included a far more straightforward claim in respect of Mishcon’s negligence/breach of contract in respect of the conduct of the 2012 claim. As I have already set out negligence had been admitted by Triton.

On 10 December 2019 a Defence was filed on behalf of Mishcon with a statement of truth signed by the Third Defendant; Jarrett Brown. The fifth defendant, Mr Smith KC drafted the Defence, which included a repetition of the admissions in the Triton Letter. It was also admitted, that Ms Shand had lost the opportunity to pursue the 2012 Action. Lester Aldridge LLP were instructed by Ms Shand, at Mishcon’s expense, to assist her.

The remaining claim against Mishcon was eventually settled on 22 January 2021 by Ms Shand’s acceptance of a Part 36 offer, but in the interim, on 21 June 2020, Ms Shand had issued further proceedings; QB-2020-002128 (“the 2020 Action”) alleging that Mishcon had been guilty of the tort of harassment.

The majority of the Particulars of Claim in the 2020 action sets out (in detail) the same underlying facts as were relevant to the 2019 Action. A schedule of loss sought unquantified damages for harassment and loss of future earnings/retirement savings, and a total of £1.3 million for the alleged 'blight' on Ms Shand's Property.

On 1^st July 2020 Ms Shand issued an application in the 2019 Action to set aside parts of the Notice of Discontinuance and to serve substituted Particulars of Claim. She asserted in her N244 Application Notice that the Notice of Discontinuance had been filed at a time while she was suffering from 'severe mental distress/stress breakdown'. That application was supported by a 28-page witness statement setting out the basis for seeking permission to resurrect the discontinued claims and amend the Particulars.

As part of Mishcon’s response to that application, Mr Levy filed a witness statement in the 2019 Action (‘Mr Levy’s 2020 Statement’) denying the allegations of fraud and dishonesty made against him. Ms Shand alleges within the contempt permission application that Mr Levy’s evidence in that witness statement was false, and known to be false. It forms the basis of all the three allegations of contempt made against him.

There was a CCMC in the 2019 Action on 27 July 2020 before Chief Master Marsh. Ms Shand represented herself. Mishcon was represented by Mr Smith KC who prepared a skeleton dated 22 July 2020 and made oral submissions. He was instructed by Mr Bennett of DWF. Ms Shand has made several allegations concerning this hearing and the conduct of the Defendants in relation to it. Ms Shand states in her Particulars that Chief Master Marsh

“believed the false and misleading picture painted by the submissions of Messrs Levy, Brown, Bennett and Smith KC.”

and that

“The effectiveness, fairness and impartiality of the court was disrupted so significantly during the 2019 action and the 2020 action that it could not perform its tasks without bias or prejudice.”

It is alleged against Mr Bennett that he improperly attempted to prevent Ms Shand from putting relevant evidence before the Court.

Chief Master Marsh rejected Ms Shand’s application to set aside parts of the Notice of Discontinuance and permission to amend was only given in accordance with draft amended Particulars of Claim which had previously been annotated by Mr Smith KC to indicate what Mishcon contended was permissible. Ms Shand had to pay costs of the amendment. The balance of the CCMC was adjourned. The transcript of that hearing shows that Chief Master Marsh did not rely on Mr Levy’s 2020 Statement, which he regarded as addressing a contested issue of fact. Chief Master Marsh ordered that the 2020 Action be transferred to the Business List of the Chancery Division and case managed with the 2019 Action.

On 24 August 2020 Mishcon made a Part 36 offer in respect of the 2019 and 2020 Actions in the sum of £290,000.

On 28 September 2020 Ms Shand produced Particulars of Claim in the 2020 Action running to 108 pages and alleged conduct by Mishcon amounting to harassment.

On 15 October 2020 Mishcon applied to strike out of, or for summary judgment on, the 2020 Action including because it did not disclose a proper cause of action in harassment.

In November 2020 Mr Smith KC was replaced as Mishcon’s counsel by Mr Chelmick.

On 17 November 2020 Mr Chelmick produced a skeleton for the hearing of the adjourned CCMC in the 2019 Action and the application to strike out the 2020 Action. In summary, Mishcon’s position was that the 2020 claim was bound to fail as a matter of law because the communications in question were necessary and legitimate communications between Ms Shand and the solicitors she had instructed to represent her. Also certain claims were duplicative of discontinued claims from the 2019 Action.

At the hearing on 23 November 2020 Mr Chelmick made submissions in support of the application. Chief Master Marsh struck out the 2020 Action and ordered Ms Shand to pay costs of £50,000.

As with the July 2020 Hearing, Ms Shand makes various allegations about the conduct of the Defendants in relation to that hearing.

On 22 January 2021 Ms Shand wrote to DWF to accept out of time Mishcon’s Part 36 offer, thereby staying the remainder of the 2019 Action.

In January 2022 the SRA informed Mr Levy that Ms Shand’s complaints that he had misled her into thinking that he had read her file did not require further investigation. The SRA subsequently confirmed in August 2023 no action would be taken against Mishcon.

Ms Shand intimated she might bring contempt proceedings against Mr Smith KC on 29 June 2023 and Mr Chelmick on 2 August 2023. She then served a ‘Notice of Committal Action’ against Mr Smith KC on 10 April 2024 saying she intended to issue no later than October 2024, and a similar notice for Mr Chelmick on 31 May 2024. She did not issue the application until 13^th May 2025; so approximately a year after her “notices”.

The Particulars of contempt in respect of which permission is sought can be briefly summarised as follows;

The allegations relate to two actions

The allegations relate to the statement made in 2020;

The allegations relate to the 2019 action

The allegations relate to the 2019 and 2020 actions;

The allegations relate to a hearing in the 2019 and 2020 actions

The allegations relate to a hearing in the 2019 and 2020 actions

Before turning to my analysis of the allegations it is necessary to briefly set out the relevant legal principles which given the applications.

Interfering with the administration of justice and/or making false statements is usually characterised as “criminal” rather than “civil” contempt. Proceedings to commit a defendant to prison for “criminal” contempt of court are public law proceedings which are pursued in the public interest, not in the interests of a private litigant.

In KJM Superbikes Ltd v Hinton [2009] 1 WLR 2406 (CA) at [9], Moore-Bick L.J. said (citing the decision of Sir Richard Scott V-C in Malgar Ltd v R E Leach (Engineering) Ltd [2000] FSR 393):

“Proceedings for contempt of court are public law proceedings and therefore when considering whether to give permission for proceedings to be taken in any particular case the court must have regard to the public interest alone. Knowingly to give false evidence in a witness statement intended for use in proceedings, particularly proceedings of a kind that are ordinarily determined without oral evidence, will usually involve an attempt to interfere with the course of justice and such proceedings might therefore be regarded as a matter primarily for the public authorities. However, a private individual, usually a party to the proceedings, may well be directly affected by such action… so it is perhaps not surprising that rule 32.14(2)(b) contemplates that proceedings for contempt may in some cases properly be brought by a private person. None the less, because the proceedings are of a public nature “The court from which permission is sought will be concerned to see that the case is one in which the public interest requires the committal proceedings to be brought”: per Sir Richard Scott V-C, at p 396.

And

“In my view the wider public interest would not be served if courts were to exercise the discretion too freely in favour of allowing proceedings of this kind to be pursued by private persons. There is an obvious need to guard carefully against the risk of allowing vindictive litigants to use such proceedings to harass persons against whom they have a grievance, whether justified or not [...] I would therefore echo the observation of Pumfrey J in the Kabushiki Kaisha Sony Computer case… that the court should exercise great caution before giving permission to bring proceedings.”

Moore-Bick LJ identified the core factors to consider in a case where it is alleged that the defendant has made false statements in a document verified by a Statement of Truth;

“Among the foremost [factors] are the strength of the evidence tending to show not only that the statement in question was false but that it was known at the time to be false, the circumstances in which it was made, its significance having regard to the nature of the proceedings in which it was made, such evidence as there may be of the maker’s state of mind, including his understanding of the likely effect of the statement and the use to which it was actually put in the proceedings.”

Whipple J (as she then was) summarised the relevant principles in Newson-Smith v Al Zawawi [2017] EWHC 1876 (QB) as follows;

“a)

The question for the Court at this stage is not whether a contempt of court has in fact been committed, but whether proceedings should be brought to establish whether it has or not.

b)

Because proceedings for contempt of court are public law proceedings, when considering whether to give permission the Court must have regard to the public interest alone. That involves two key considerations:

i)

Is the case one in which the public interest requires that the committal proceedings should be brought; and

ii)

Is the applicant a proper person to bring them.

c)

A number of factors are likely to be relevant to the assessment of the public interest in any given case. On the one hand, there is a public interest in drawing the attention of the legal profession and potential witnesses to the dangers of making false statements to the Court. On the other hand, the Courts should guard against exercising the discretion too freely in favour of allowing proceedings to be pursued by private persons. Specifically:

i)

the court should not grant permission unless there is a strong prima facie case that the allegations will be proved to the criminal standard at a substantive hearing;

ii)

the Court must not stray into determining the merits of the case at the permission stage

iii)

in cases where false statements are at issue, the applicant must show a strong prima facie case not only that the statement was false but also that it was known at the time to be false;

iv)

in assessing the strength of the applicant's prima facie case, the Court will take account of all the circumstances of the case, and will have regard in particular to the circumstances in which the statement was made, the state of the maker of the statement's mind, including his understanding of the likely effect of the statement, the use to which the statements was put in the proceedings, the extent to which the false statements were persisted in, and any delay in warning the respondent that he or she may have committed contempt by making a false statement at the earliest opportunity; and

v)

The court must guard against the risk of allowing vindictive litigants to use committal proceedings to harass persons against whom they have a grievance.

d)

The Court must also consider whether it is proportionate to allow committal proceedings to be brought. That involves an assessment of the strength of the case against the respondent(s), the amounts in money terms which were involved in the proceedings in which the allegedly false statements were made and which were affected by those statements, the likely costs involved on both sides, and the amount of court time likely to be involved in managing and hearing the matter.

e)

The Court must also consider whether contempt proceedings would further the overriding objective of the CPR to deal with cases justly”

The required state of mind of an alleged contemnor was set out by the Court of Appeal in Norman v Adler [2023] EWCA Civ 783, at paras 60-61. This refers to the need:

“for the alleged contemnor to know that what he is saying is not true. It is not sufficient to say that the contemnor did not care whether what he said was true or not. It must first be proved to the requisite standard that he knew that he did not know whether what he said was true or not.”

Ms Shand recognised during submissions that her allegations that, in the alternative to actual knowledge, the Defendants were reckless as to whether matters were true or not was not sufficient to amount to contempt.

Adverse inferences can be drawn as to the defendant’s state of mind, but only where the Court is able to exclude all realistic possibilities consistent with the defendant’s innocence: see Business Mortgage Finance 4 Plc v Hussain [2023] 1 WLR 396 (at para 96(2)) mirroring the test in criminal cases generally.

The Court must consider, and be satisfied that permission should be granted, in relation to each allegation of contempt separately: see HM Attorney General v Yaxley-Lennon [2020] 3 All ER 477.

CPR 81.3(5) provides that:

“Permission to make a contempt application is required where the application is made in relation to –

(a)

interference with the due administration of justice, except inrelation to existing High Court or county courtproceedings:

(b)

an allegation of knowingly making a false statement in any affidavit, affirmation or other document verified by a statement of truth or in a disclosure statement.” (underlining added)

The Defendants have raised the issue of whether the contempt proceedings were brought in the context of “existing proceedings” given the 2012 Proceedings were struck out and the claims in the 2019 Proceedings were discontinued and/or stayed by Ms Shand’s acceptance of settlement terms. The question that arises is whether “existing proceedings” within CPR81.3(5)(a) means no more than “where proceedings have been issued” or whether it is limited to “ongoing” proceedings as opposed to proceedings which have ended through determination (including strike out) or settlement.

The Fifth and Sixth Defendants in their strike out Application Notice [CB/443-447]) drew attention to the decision of HHJ Russen in Advantage v Harris [2024] 1 WLR 4135 in which he stated;

“23.

My reasons for granting permission to make this application on these grounds were given at a hearing on 16 March 2023. I will not repeat them here (or make further reference to the authority then cited) but, in the absence of any transcript of that hearing, I will simply say again that it was then not obvious to me, on the true interpretation of that provision in the CPR , and having regard to (what appeared to me) to be the apparent distinguishing of cases where the contempt application arises in the context of existing litigation from those which either do not or might not do so, that the County Court proceedings should be treated otherwise than as "existing proceedings" for the purposes of CPR 81.3(5)(a). This notwithstanding that the Judge had given judgment on the Claim. Proceedings do not generally "die" with the judgment; and I could see no reason for (and indeed could see reasons against) treating them as dead for the purposes of a contempt application arising out of things said or done in the course of them. If the County Court proceedings were "existing proceedings" then Advantage did not require permission to pursue that part of the application based upon an interference with the administration of justice: see CPR81.3(5)(a).”

The issue having been raised in response to the applications, Ms Shand has relied on Advantage to suggest that permission is not needed for allegations other than those which allege knowingly making a false statement verified by a statement of truth.

In my view the starting point is that proceedings which are not appeal rights exhausted, or are stayed, remain ongoing, or at least potentially ongoing proceedings, and therefore existing on either of the alternative definitions. A contempt application may be made in them (i.e. no need for a Part 8 claim) and they have not, to use Judge Russen’s term “died”. However what of proceedings such as the 2012 proceedings in the present case which were struck out in 2013; twelve years prior to the making of the contempt application? If such proceedings are “existing” then they have, effectively for the purposes of CPR 81.3(5); everlasting life.

I was helpfully referred to authorities within which it has been held that when proceedings have been issued that they are “existing” for the purposes of the permission filter (regardless of what subsequently happens to them).

In Hijazi v Yaxley-Lennon [2024] EWHC 1991 (KB) the Solicitor General sought a finding of contempt against Mr Yaxley-Lennon on the grounds that he has breached a court injunction ("the contempt application") Johnson J reviewed the authorities and stated; (at paras 29-31).

“29.

The Solicitor General accepts that the present application is made in relation to the interference with the due administration of justice. Accordingly, the Solicitor General requires permission to make the application unless it relates to existing High Court or county court proceedings. The application relates to High Court proceedings, namely the proceedings within which the application has been made (with claim number QB-2019-001740) which are the same proceedings as those within which Nicklin J made the order of 22 July 2021. These are, therefore, "existing" proceedings. The fact that judgment has been given in the proceedings does not mean that they have ceased to exist. On the contrary, they continue to exist and, as the current application shows, they have continuing vitality. They could form the basis for an (out of time) appeal against orders made in the course of the proceedings, or for a detailed assessment of costs, or for enforcement. The word "existing" means that the proceedings have started, so that they "exist". That is the case here. I do not consider that rule 81.3(5)(a) is intended to limit the concept of "existing proceedings" to proceedings which have not yet resulted in a final order. There does not seem to me to be any good policy reason why, for example, permission should be required to bring contempt proceedings in respect of a final injunction, but not in respect of an interim injunction.

30.

This approach to the words of rule 81.3(5) is consistent with the decision of Bacon J in Care Surgical Ltd v Bennetts [2021] EWHC 3031 (Ch) at [7] . Bacon J said that "existing" is a "broad term" which seeks to distinguish between "intended proceedings" (i.e. proceedings that do not yet "exist") and proceedings that have "come into existence". Pepperall J reached the same conclusion in Achille v Calcutt [2024] EWHC 348 (KB) . He said the "rule distinguishes between the position where the allegation of contempt is in relation to proceedings that have come into existence and cases where the proceedings remain intended or indeed have never come into existence". I agree.

31.

Mr Payter very properly drew my attention to the decision in YSA v Associated Newspapers [2023] UKUT 00075 (IAC). In that case the Upper Tribunal did not consider that it would be right to describe proceedings as "existing" when they were "now over". I respectfully disagree. For the reasons I have given, I prefer the approach taken in Care Surgical and Achille . Accordingly, I direct that the Solicitor General does not require the permission of the court to bring this application.”

It was argued on behalf of the Defendants that, none of the reported cases to date have dealt with the situation where proceedings have been struck out or settled. However, the reasoning of Bacon, Pepperall and Johnson JJ’s is clear. The distinction is between acts concerning intended/unissued proceedings as opposed to those concerning proceedings which have been issued. Whilst such proceedings may, at first blush, appear to have been concluded, to have “died”, they could, as Johnson J observed, form the basis for an (out of time) appeal against orders made in the course of the proceedings, or for a detailed assessment of costs, or for enforcement, or, I would add, an application that the proceedings should be re-opened by virtue of relevant fraudulent conduct. Indeed such an application based on recently discovered fraudulent conduct could well be accompanied by a contempt application. Whilst this interpretation of “existing proceedings” raises an uncomfortable challenge to the principle of finality, a Respondent has open the step (as used in this case) of issuing an application to strike out the application as an abuse. Also permission to make a contempt application is required where the application is made in relation to an allegation of knowingly making a false statement in any affidavit, affirmation or other document verified by a statement of truth or in a disclosure statement.

Turning to sub-section(b), at first blush matters are straightforward. Where an Applicant is making an express allegation that a Defendant (personally) made a false statement of truth in a witness statements or pleading; permission is required as there is no exception for existing proceedings. However the questions arise as to the effect of a potential overlap with subsection (a).

In Cole v Carpenter [2020] EWHC 3155 (Ch), Trower J expressed scepticism as to the argument that no permission was required under CPR 81.3(5)(a) where it was required under ground (b) and the underlying facts were identical. At para 23, he held;

“The reason for my scepticism was that, although ground 1 was formulated as an interference with the due administration of justice, it was at least well arguable that an application based on ground 1 was also “made in relation to…an allegation of knowingly making a false statement in any…document verified by a statement of truth…” so as to fall within CPR 81.3(5)(b). If that were to be the case, they would also require permission for a contempt application based on ground 1, even though there might be other categories of interference with the due administration of justice for which permission is not required.”

Trower J continued:

“Even if permission is not required for ground 1, the allegations of fact relied on in relation to both ground 1 and ground 2 are in all respects identical. In these circumstances, there is at least a serious possibility that the court would consider it appropriate to stay contempt proceedings based on ground 1 if permission is refused on ground 2 … and, if the refusal were to be on the basis that the contempt application was being made for an improper purpose, that might be a ground for striking it out altogether…. It follows that I will simply determine the question of whether permission should be granted on ground 2 without regard to any consideration that an application based on ground 1 might proceed in any event.”

In UK Insurance v Ali [2024] 1 WLR 4657, Pepperall J held that there was force in the submission that the Court should consider the true nature of the allegation and not simply the “label given to it by the claimant” (such labels being potentially applied to avoid the need for permission). He then noted that:

“Most obviously an allegation that a defendant interfered with the due administration of justice in existing proceedings by him or herself making a false statement in a document verified by a statement of truth should, in my judgment, be regarded as in substance an allegation that falls within rule 81.3(5)(b). The important issue of whether permission is required cannot turn on the skill of the draftsman but must be approached on the basis of the true substance of the allegation.”

CPR 22.1(6) sets out that

“6)

The statement of truth must be signed by –

(a)

in the case of a statement of case…or an application –

(i)

the party or litigation friend; or

(ii)

the legal representative on behalf of the party or litigation friend; and

(b)

in the case of a witness statement, the maker of the statement.”

The notes in the White Book (Civil Procedure) at 22.1.2 contain the following comment:

“A statement of truth verifying a statement of case must be signed by either the party or the legal representative on behalf of the party (r.22.1(6)). In either event, it is the party and not the legal representative, who is “putting forward the document.””

In my view a party who instructs a legal representative to sign a declaration of truth at the end of a pleading knowing that it contains a false declaration of fact/s is “making” a false statement within that document verified by a statement of truth for the purposes of CPR 81.3(5)(b) and as a consequence permission is required.

Applying this conclusion in respect of each of the allegations the position is as follows;

Given the potential for the Court to take the view (as I have) that the term existing proceedings should be interpreted to mean circumstances where proceedings have been issued and so permission was not required unless the Court viewed the allegation as being caught by the requirement in subsection (b), each of the Defendants issued strike out the applications; relying on the matters that were relied on in objection to any application for permission. There is clear force in Ms Mulcahy KC’s submission that nothing of substance turns on the technical question of whether permission is required as it only determines the jurisdictional mechanism by which the Court decides whether the proceedings should continue. Put another way, the route taken to the required analysis of the merit in the allegations i.e. considering whether permission should be granted or considering whether the applications should be struck out as they would not pass the test for permission, should make no difference to the outcome. This pragmatic submission was in line with Ms Mulcahy’s overarching submission that Ms Shand’s allegations were wholly unfounded, have no prospect whatsoever of being proved, lack any merit, and are vexatious litigation and an abuse of the process of the Court.

As Mr Wilton KC pointed out before the reformulation of CPR 81 in 2020 the Practice Direction expressly provided that:

“On application by the respondent or on its own initiative, the court may strike out a committal application if it appears to the court-

(1)

that the application and the evidence served in support of it disclose no reasonable ground for alleging that the respondent is guilty of a contempt of court;

(2)

that the application is an abuse of the court’s process or, if made in existing proceedings, is otherwise likely to obstruct the just disposal of those proceedings; or

(3)

that there has been a failure to comply with a rule, practice direction or court order.”

There is no longer a Practice Direction which accompanies CPR 81 but I accept Mr Wilton KC’s submission that the court retains the power to restrain contempt proceedings which are devoid of merit or an abuse of process. The Practice Direction was never the source of the jurisdiction, which can only have been the Court’s inherent jurisdiction. In Vseukrainskyi Aktsionernyi Bank PJSC v Maksimov [2014] EWHC 4370 (Comm), the then Hamblen J observed;

“…An increasing amount of this court's time is being taken up with contempt applications. Claimants should give careful consideration to proportionality in relation to the bringing and continuance of such proceedings. In appropriate cases respondents should give consideration to applying to strike out such applications for abuse of process. The court should be astute to detect when contempt proceedings are not being pursued for legitimate aims. Adverse costs orders may follow where claimants bring disproportionate contempt applications.”

This remains an accurate statement; indeed in my experience there are far more contempt applications made now than there were in 2014 and heighted vigilance is required. The only sensible analysis is that, given its inherent jurisdiction, the Court has the power to strike out a contempt application if that application (taken together with the evidence served with it) discloses no reasonable ground for alleging that the respondent is guilty of a contempt of court and/or is an abuse of the court’s process and/or if made in existing proceedings, is otherwise likely to obstruct the just disposal of those proceedings.

The application to strike out on behalf of Mr Smith KC and Mr Chelmick is put on a dual basis:

I now turn to the allegations in respect of which permission was sought. Given what transpired during the hearing I start with the allegations against Mr Bennett, Mr Smith KC and Mr Chelmick. Given the nature of allegations and the submissions made by Mr Wilton KC and Ms Mulcahy KC that Ms Shand has failed to appreciate, or make allowance for, the proper role of lawyers acting in a representative capacity I will start with a brief analysis of the professional duties/responsibilities of lawyers.

Lawyers acting in a representative capacity have no automatic shield against contempt proceedings. There is no reason why lawyers should not be subject to contempt proceedings like anyone else if they disobey a court order or make a statement they know to be false or deliberately interfere with the due administration of justice. Nevertheless, when issues are raised about their conduct account must be taken of the particular role they undertake.

An error which has led to some of the allegations made by Ms Shand against the lawyers involved in her litigation is the belief that it is the responsibility of a barrister or solicitor to act as an investigator (or Judge) of their client’s case. Such is the nature of civil and criminal proceedings the facts and/or the correct applicable law are often in dispute. It is the role of the lawyers to advance their clients’ cases as best they can. It is the role of the Judge to decide, making findings of fact and determinations of what the law is and how it should be applied. During submissions I explained the nature and extent of a lawyer’s duty to the court and to the lay client using the example of a criminal advocate. In a straightforward case with no complex legal issues if an advocate has been told by a client that the client is guilty of a charge then the advocate cannot represent the client on a not guilty plea. However if a client states that he/she is not guilty it is the duty of the advocate to represent that client to the best of his/her abilities and in line with codes of professional conduct. The advocate’s view of the likely guilt of the client is irrelevant; that is a matter for the fact finder/s. The Bar Standards Guidance expressly confirms that barristers must observe their duty to the court in the administration of justice and must act with honesty and integrity, and are;

“…obliged by (rule CD2) to promote and to protect your client’s interests so far as that is consistent with the law and with your overriding duty to the court under (rule CD1). Your duty to the court does not prevent you from putting forward your client’s case simply because you do not believe that the facts are as your client states them to be (or as you, on your client’s behalf, state them to be), as long as any positive case you put forward accords with your instructions and you do not mislead the court. Your role when acting as an advocate or conducting litigation is to present your client’s case, and it is not for you to decide whether your client’s case is to be believed.”

Were it otherwise, and there was duty on the Advocate to investigate all the alleged facts and take a view as to guilt it would put professional advocates in an impossible position of conflict with their own client. Advocates would be likely to refuse to represent many potential clients and the rule of law would be undermined.

The Code of Conduct for solicitors describes the standards of professionalism the Solicitors Regulation Authority (“SRA”) and the public interest expect of individuals authorised by the SRA. The SRA Principles require solicitors to act in a way that upholds the proper administration of justice and public trust and confidence, with independence, honesty, and integrity. Solicitors owe duties not to mislead the court or others (Rule 1.4), not to generate false evidence (Rule 2.2), and only to make assertions or put forward statements, representations or submissions to the court or others which are properly arguable (Rule 2.4). Mr Bennett was as a partner of DWF, which was representing Mishcon in the 2019 Action and his duty was to act in Mishcon’s best interests, subject to these professional obligations.

As Mr Wilton KC correctly observed when drafting a statement of case, a witness statement or a skeleton argument, or when making oral submissions (based on witness statements) a barrister or solicitor is advancing his or her client’s case on instructions and is not personally vouching for the truth of any factual contentions or legal argument. It is the client or witness who vouches for the truth of a statement of case or statement even if a solicitor makes a statement of truth on behalf of the client (see the notes within the White Book set out atparagraph112above). Solicitors and barristers do have a duty to the court which takes precedence over their duty to their client including the duty not to state facts the lawyer knows to be false and not to mislead the court or anyone else. However there is no general or overarching duty to investigate the accuracy or veracity of what a client or witness says. The lawyer’s role is to set out the facts and any pertinent legal or other contentions based on instructions and the documentation or other sources of information and, where relevant, the applicable law. That may well involve the presentation of a contested and sometimes even a highly unlikely version of the facts or a contestable view of the law and, as Mr Wilton correctly observed, there is absolutely nothing wrong with that, subject to the lawyer’s duty not to mislead or make statements of fact known to be false. So far as matters of fact are concerned, for permission to be granted Ms Shand had to establish that there is a strong prima facie case that Mr Bennett, Mr Smith KC and Mr Chelmick had put forward factual statements they knew to be untrue before there could be a contempt. As I have set out recklessness is not sufficient; it needs to have been knowledge.

Although it is not determinative of the issues in this case privilege, where it is not waived, is an additional complication when considering allegations of contempt against a lawyer who has presented a client’s case. Mr Smith KC and Mr Chelmick’s instructions and communications with their instructing solicitors, DWF, and client, Mishcon, in the 2019 and 2020 Actions are privileged. Mr Smith KC and Mr Chelmick have requested a waiver but Mishcon, as is its absolute right, has declined. They are therefore inhibited in what they can say about the basis upon which they drafted statements of case or submissions or made oral submissions or otherwise conducted themselves. As Mr Wilton KC correctly observed allowances have to be made for their inability to tell the whole story. In Medcalf v Mardell [2002] UKHL 27, [2003] 1 AC 20 the House of Lords emphasised the need for extreme care before drawing adverse inferences where privilege was not waived. More significantly in terms of evidence supporting her applications Ms Shand does not know what the Barristers’ instructions were or what documentation or other information was shared with them which informed the way statements of case or submissions were formulated.

It is submitted on behalf of Mr Bennett that Ms Shand chose not to pursue her claim against Mishcon to trial, but rather to receive a substantial settlement payment. It is an abuse of process to seek to relitigate the same issues by bringing contempt proceedings against a representative of the opposing party. I accept this overarching submission.

Turning briefly to the specific allegations, count 1 against Mr Bennett is that he deliberately painted or helped to paint a false and misleading picture that Mr Levy had never misled Ms Shand. Count 2 makes the same allegation about Mishcon’s case that Mr Warren was a trusted senior member of the team. As Ms Mulcahy KC submitted both are premised on the discontinued allegation of fraud against Mr Levy but go further, in that it is alleged that Mr Bennett was also aware of it. In my view there is no evidence whatsoever that Mr Bennett, whose involvement was simply as a legal representative of Mishcon, knew that Mr Levy’s denial of the claims was false.The same point applies to Counts 3 and 4 which are concerned with Mr Bennett’s description of the settlement negotiations. They are premised on the allegation that Mr Bennett knew that the allegations of fraud against Mishcon were well-founded. There is no evidence he knew that they were.

Count 5 against Mr Bennett is an allegation that he interfered with the administration of justice by attempting to hamper Ms Shand putting in evidence in support of her claims at the July 2020 hearing. Count 6 makes the equivalent allegation in respect of the November 2020 hearings. I can take these allegations very shortly. Any reasonable review of the relevant correspondence reveals that they are misconceived and totally without merit. The evidence before the Court demonstrates that

As for the November 2020 Hearings, the position is essentially the same. I accept Ms Mulcahy KC ’s submission that there is no conceivable basis on which any of the relevant correspondence can be said to establish that Mr Bennett attempted to hamper Ms Shand’s ability to present evidence. Mr Bennett took a wholly reasonable view that it was not essential for more than 900 pages of exhibited evidence to be included in a procedural bundle. Ms Shand insisted it was essential, and so Mr Bennett agreed to include it. This cannot possibly establish any attempt to interfere with the administration of justice. It was no more and no less than a genuine attempt to compile a sensible hearing bundle in line with the Court’s directions on how such bundles should be prepared. 

The application for permission to proceed with the allegations made against Mr Bennett is wholly misconceived, without any merit and the contempt proceedings would be an abuse of process of the Court.

The allegations against Counsel are particularly unfortunate as I accept Mr Wilton KC’s overarching analysis that Mr Smith KC (as he set out in his witness statement) and then Mr Chelmick, at all times sought to ‘play fair’ and to make allowances for Ms Shand’s position as a litigant in person in the 2019 and 2020 Actions. Examples of steps to assist Ms Shand are that

None of the individual allegations against either Mr Smith KC or Mr Chelmick are supported by particulars or evidence which demonstrate any, let alone a strong prima facie, case in respect of contempt. As Mr Wilton KC correctly submitted there is no evidence which could establish (by inference or otherwise) that the Barristers knew they were presenting a false factual picture or a wholly unfounded legal or other contention or that they were otherwise guilty of misconduct meriting contempt proceedings. Ms Shand has asserted what she needs to prove and was plainly proceeding under the false impression that it is part of the duty of a barrister to undertake investigations to verify where the truth lies before putting forward his or her client’s case.

Briefly addressing the counts in turn:

Count 1 alleges that Mr Smith KC knew that paragraph 30 of Mishcon’s Defence was false and misleading in saying that Mr Warren was appropriately supervised when Mr Smith KC knew that Mr Levy had admitted that he had not read the file, which meant Mr Warren was not appropriately supervised. However an admission by Mr Levy that he had not read the whole of Mishcon’s file in the 2012 Action does not demonstrate that Mr Warren, who had conduct of that file, was not appropriately supervised: supervision does not require the supervisor to read the whole file.

Count 2 alleges that Mr Smith KC knew that paragraphs in Mishcon’s Defence were false and misleading as Mr Levy did not always communicate in an open and fair way, and because the denial of a breach of fiduciary duty did not address the facts in the Particulars of Claim which showed the Second Defendant did not communicate openly and fairly. Mr Smith knew that was a breach of fiduciary duty, and knew there was a further breach because of the failure to disclose a serious conflict of interest. As Mr Wilton KC pointed out Ms Shand has no good grounds for saying that Mr Smith KC had no basis in his instructions or otherwise for pleading the client’s case as he did, all the more so when the character of Mr Levy’s communications and whether there was a breach of fiduciary duty were plainly questions open to interpretation.

Count 3 alleges that the representation in Mishcon’s Defence that the Triton Letter was an even-handed assessment of the merits of Ms Shand’s complaint was improper because Mr Smith KC knew the letter was not even-handed because the misleading communications of the Second Defendant were not addressed. Again Ms Shand has no good grounds for saying that Mr Smith KC had no basis in his instructions or otherwise for pleading Mishcon’s case as he did in relation to this contested matter, which was an evaluative question open to contested viewpoints. What Mr Smith pleaded was also attested to by a statement of truth.

I shall deal with counts 4 – 10 together.

Count 4 alleges that Mishcon’s Defence repeatedly and falsely referred to the problem with the Flat as involving ‘odours’ when it was much more serious because of the presence of dangerous sewer gases and because it was ongoing. This was not admitted and nor was the Landlord’s failure to fix the problem.

Count 5 alleges that Mishcon’s Defence falsely asserted that the Manager’s and the Landlord’s Defences in the 2012 Action were properly pleaded.

Count 7 alleges that Mishcon’ s Defence painted a false picture of the extent to which the Flat was blighted suggesting it was a temporary problem referable to a historic problem.

Count 8 alleges that Mishcon’s substitute Defence painted a false and misleading picture as to the true severity and root cause of the problem at paragraphs 7, 8 and 11, saying it was minor when Mr Smith KC knew that the problem was very serious and that the Landlord was legally liable for it.

Counts 9 and 10 allege that Mishcon’s substituted Defence at paragraphs 7-9 was misleading in saying that the Manager’s and the Landlord’s Defences had been properly pleaded without mentioning that they contained false and misleading representations about the responsibility of the Manager and whether it had taken proper action and that the Landlord had relied on the Manager’s Defence and asserted none of the problems amounted to a derogation from grant or a failure to give quiet enjoyment.

I accept Mr Wilton KC’s analysis as regard these counts. He pointed out that Mishcon’s Defences acknowledged that Ms Shand had complaints about instances of water ingress and disruptive odours which she claimed were ongoing. However, the extent to which there was a serious problem, the effect on value, precisely what the evidence showed, and the responsibility of the Manager and the Landlord, were all contested issues in the 2012 Action. All that was being done in the 2019 Action was to summarise the rival cases in the 2012 Action as matters to which the court should have regard when assessing the value of Ms Shand’s lost opportunity to pursue the 2012 Action. That is the way such matters are usually set out in a ‘loss of a chance’ professional liability claim in respect of the failure of earlier proceedings. Whilst Ms Shand does not recognise any possible merit in the stance that had been taken by OM or St James and does not agree that there was any different view which could properly have been taken in the 2012 or 2019 Actions than the view she herself took, all such matters were contested in the 2012 Action, they had never been decided on the merits. These were also matters of which Mr Smith KC had no direct knowledge. Mr Smith KC was not obliged to address every factual matter relied on, still less to investigate and establish the true position for himself. What Mr Smith KC drafted was also attested by a statement of truth.

Count 11 alleges that Mr Smith KC’s skeleton argument for the hearing on 27 July 2020 was false and misleading in suggesting the Triton Letter was fair and even-handed and that settlement negotiations with Mishcon had been conducted fairly and in good faith. These are plainly allegations relating to evaluative comments and Ms Shand has no evidential support for the assertion that Mr Smith KC had no proper basis in his instructions or otherwise for advancing the client’s case as he did in relation to these contested matters.

I shall consider counts 12 -15 together.

Count 12 alleges that Mr Smith KC’s skeleton argument for the hearing on 27 July 2020 was misleading about Mr Levy deliberately misleading Ms Shand.

Count 13 alleges that Mr Smith KC’s skeleton argument for the hearing on 27 July 2020 was false in suggesting that Mr Warren was a senior member of the Second Defendant’s team at the time of Ms Shand’s complaint because it described him as a senior associate in early 2014 when Mr Smith KC knew that he was a solicitor and thus a junior member of the team.

Count 14 alleges that Mr Smith KC’s oral submissions for the hearing on 27 July 2020 deliberately and falsely represented that there was no merit in the complaint that the Second Defendant had deliberately misled Ms Shand.

Count 15 alleges that Mr Smith KC’s oral submissions at the hearing on 27 July 2020 were misleading in saying Mr Warren was a senior member of the Second Defendant’s team in 2014 as a highly regarded senior associate when Mr Smith KC knew he was in fact a solicitor.

Again I accept Mr Wilton KC’s submissions in respect of these counts. Mr Smith KC’s skeleton went no further than to say that Mr Warren was a “senior associate” and that on the basis of Mr Levy’s statement there was no basis for Ms Shand’s intended new allegations of wrongdoing which were an attempt to resurrect allegations previously discontinued. Mr Smith KC’s oral submissions were to like effect. Mr Smith KC said there was no basis for alleging Mr Levy had been deliberately misleading, relied on the Second Defendant’s statement, and added that the Second Defendant’s evidence would be that “Mr Warren was a senior associate who was very highly regarded”. Ms Shand has no grounds for saying Mr Smith KC had no proper basis in his instructions or otherwise for submitting as he did in respect of what were in part evaluative questions. Critically, Mr Warren was an experienced solicitor, and there was nothing substantially misleading about what Mr Smith KC said even if there was an element of confusion in the evidence and in turn in what Mr Smith KC said when describing Mr Warren’s position in early 2014. Ms Shand does not explain how, let alone demonstrate that, Mr Smith KC did not have grounds for saying what he said, let alone that he knew that anything he said was false. There is no legitimate basis for any criticism of Mr Smith KC.

Count 16 alleges that all the matters in the other counts amounted to a fraud on the court. This is an allegation which adds nothing to the other allegations and is without foundation.

The allegations against Mr Chelmick are covered in 85 paragraphs in the contempt application.

Count 1 alleges that Mr Chelmick falsely asserted in his skeleton argument of 17^th November 2020 that attempts to respond to and settle Ms Shand’s complaint and claim, before and after issue of the claim against Mishcon, were conducted reasonably when he never had an honest belief in the truth of Mishcon’s Defences. He never believed what was said in the Triton Letter and knew it was false in material respects and that Ms Shand’s retainer of Lester Aldridge LLP had been terminated and Ms Shand had directly engaged with DWF thereafter. He therefore knew that the offers to settle were unfair and advanced in bad faith, and knew also that there had been a last-minute confession by the Second Defendant which wrong-footed Ms Shand.

Ms Shand has no good reason, or any evidential support, for the assertions that Mr Chelmick had no proper basis in his instructions or otherwise for saying what he did in relation to whether Mishcon had conducted itself reasonably in responding to her complaint (and in responding to and seeking to settle her claim) which were evaluative matters. There is no legitimate basis for criticism of Mr Chelmick for advancing his client’s case as he did.

Count 2 alleges that Mr Chelmick falsely asserted in his skeleton argument of 17 November 2020 that the claims against Mr Levy should be struck out as he was not involved in the underlying claim, when he had been involved and had misled Ms Shand. Mr Chelmick failed to take account of what Ms Shand said about such matters in her skeleton. AgainMs Shand has no good reason for saying that Mr Chelmick had no proper basis in his instructions or otherwise for advancing the client’s case as he did bearing in mind that what he said was that Mr Levy was not “directly involved” in the underlying claim. Mr Levy had already made clear that he did not have day-to-day conduct and that that was the job of Mr Warren, albeit that he had had a limited supervisory role. Mr Chelmick’s characterisation of the position was, as Mr Wilton KC stated “entirely unexceptionable” given the nature of Mishcon’s case.

I take Counts 3 and 4 together. Count 3 alleges that Mr Chelmick omitted from the reading list for the hearing on 23 November 2020 Ms Shand’s exhibits MS 27 and 28 creating the false impression they were not worth reading when he knew they contained evidence showing that Mr Warren was a solicitor and not a senior member of the Second Defendant’s team and evidence that the Second Defendant had deliberately misled her (when Ms Shand’s own statement referred to such material and when Mr Chelmick knew that the Second Defendant’s statement was excluded from the hearing bundle although it confirmed he had not read her file and wrongly said he had not misled her and that Mr Warren was a trusted and senior member of his team). Count 4 alleges that Mr Chelmick included in the reading list for the hearing on 23 November 2020 Mishcon’s substituted Defence in the 2019 Action which gave a false and misleading picture of the blight affecting the Flat and said that the Manager’s and the Landlord’s Defence could be trusted when they were false and misleading.

A reading list serves no other purpose than to identify documents it would be helpful for the court to read before the hearing. The documents Ms Shand wished to rely upon were included in the hearing bundles. Her skeleton requested that Master Marsh should read them, and she was able to refer to them orally. There also is plainly nothing wrong with including a party’s Defence in a reading list. These allegations are hopelessly misconceived.

Count 5 alleges that Mr Chelmick, in oral submissions on 23 November 2020, wrongly suggested it was meritless to suggest that Mr Levy had misled her. This was an issue in the proceedings and Mr Chelmick was entitled to advance Mishcon’s case by making the submission this submission. Ms Shand does not agree with the submission but it does not follow that Mr Chelmick knew it to be false. Ms Shand’s case is pure assertion.

Count 6 alleges that Mr Chelmick made a misleading oral submission on 27 November 2020 that the budgeted costs for Leading Counsel were proposed for a legitimate purpose because it was important in the case to be able to instruct Leading Counsel when that concealed the fact that funds were required to effect a fraud on the court. Mr Chelmick was entitled to make submissions seeking to justify Mishcon’s intention to continue to instruct Leading Counsel. Ms Shand has no evidential basis for saying that the purpose was to undertake an (unexplained/unspecified) fraud on the court.

Count 7 alleges that the preceding wrongdoing by Mr Chelmick amounted to a fraud on the court involving the misrepresentation of material facts, with no honest belief in the truth of representations made. This adds nothing to the other allegations.

Taking the counts against Mr Bennett, Mr Smith KC and Mr Chelmick in turn.

I refuse permission in respect of Counts 1-4 and 7 against Mr Bennett.Had permission not been required I would have struck these allegations out on the basis that they do not disclose any reasonable grounds for alleging contempt and also as an abuse of Court. I strike out allegations five and six as wholly without merit and an abuse of process of the Court. I strike out allegations five and six as wholly without merit and an abuse of the process of the Court.

I refuse permission in relation to all counts against Mr Smith KC and Mr Chelmick, alternativelyI strike them out on the basis that they do not disclose any reasonable grounds for alleging contempt and also as an abuse of process of the Court as they are in my view an attempt to relitigate the issues determined by the Court. Such an intent is clear when consideration is given to the remedies sought in the application.

The applications for permission are totally without merit.

I now turn to the allegations against Mr Kemkers.

Ms Shand has set out 16 counts of contempt against Mr Kemkers, occupying 20 pages of her contempt application. Mr Kemkers has set out a detailed response to each of the Counts.

As I have set out Ms Shand issued proceedings on 25^th October 2012 against OM and St James. She alleged that her flat had been affected by water ingress and foul odours and sought damages for breach of the terms of the lease. On 18^th October 2013 St James served a defence. The statement of truth was signed by a partner at Eversheds who had taken instructions from Mr Kemkers. The Proceedings were eventually struck out. On 20^th June 2019 Ms Shand commenced further proceedings against 10 Defendants including St James alleging an unlawful means conspiracy. St James filed a defence on 13^th November 2019.The statement of truth was signed by a solicitor at Mills and Reeve who had taken instructions from Mr Kemkers. On 25^th November 2019 Ms Shand discontinued the proceedings against St James and on 11^th December Ms Shand and St James entered into a settlement agreement with Ms Shand agreeing not to pursue any further claims against St James in exchange for St James not pursuing its costs.

The first step in the analysis is to making some overarching points in relation to the application.

Firstly, there has been excessive delay in making the application.

Counts 1-8 relate to the 2012 action and a defence served on 18^th October 2013. It is of note that Ms Shand’s own barrister, Mr James, advised her that she did not have a claim in respect of St James’ defence in the 2012 proceedings in 2018.

Counts 9-16 relate to 2019 proceedings and a Defence signed on 13^th November 2019.

The contempt proceedings were issued in May 2025 some eleven and a half years after the first defence and five and a half years after the second defence. There has been an excessive delay in bringing the application which has caused a genuine risk of prejudice to the Defendant. The statement of Mr Smith sets out at paragraph 41 that Mr Kemkers does not have a good recollection in respect of several matters and as a result there is a real risk that the delay would severely hamper the Court’s ability to deal with the application justly. Given the delay in this case, and taken against all the other relevant circumstances, including the nature and seriousness of the allegations and the reasons for the delay (the amount of time required to investigate and prepare the allegations) it would not be in the public interest to allow these allegations to proceed and/or they are an abuse.

Secondly, I am satisfied that the contempt application against Mr Kemkers is being brought for an improper collateral purpose. It is clear from the remedies sought that Ms Shand is seeking to relitigate elements of the previous claims brought in 2012 and 2019 and to go behind/circumvent the strike out of one claim and the discontinuance of another.

Thirdly, I accept the submission that Ms Shand’s allegations in respect of the 2012 proceedings are abusive in the sense set out in Henderson v Henderson (1843) 3 Hare 100 i.e. in that the claims against Mr Kemkers should have been brought in the 2019 proceedings if they were going to be brought at all. This is a very well settled principle. The decision of the House of Lords in Johnson v Gore Wood & Co [2002] 2 AC 1 remains the leading authority. Lord Bingham (with whom three other members of the House of Lords agreed) explained the general principle at 31A-F:

While the fact that the defendants are not the same is a strong factor against a finding of abuse, it is not a bar. Where there is near complete overlap between the issues to be litigated, and in particular where the same individual is having his professional reputation called into question in respect of the same allegations twice, a second set of proceedings against different defendants may be abusive: see the judgment of Lord Justice Briggs ( as he then was) in Gladman Commercial Properties v Fisher Hargreaves Proctor [2013] EWCA Civ 1466;

“49.

This is, of course, not a case in which the allegedly abusive claim is being pursued against persons who were defendants to the earlier claim. It therefore falls within that category where the absence of overlap between defendants is a powerful factor against finding abuse, but not a bar: see per Thomas LJ in the Aldi case at paragraphs 6, 9 and 10. Nonetheless, the judge plainly had these considerations in mind, since he cited the very passages in the Aldi case in which they are set out, at paragraphs 151-2 of his judgment.

50.

What plainly overrode this consideration in the judge's mind was the almost complete overlap between the issues in the First and Second Claims, the need for them to be litigated again over many weeks at a second trial (after fifteen days part-heard in the first trial) and, in particular, the consequential oppression of Mr. Bishop and Mr. Hargreaves in being required to defend their careers and professional reputations from the most serious allegations not once, but twice.

51.

The judge was plainly aware that, merely because the claims against the Respondents could have been brought in the First Claim, it did not follow that they should have been. His conclusion that, in fact, they should have been flowed from his perception that this would have saved enormous cost, avoided multiplicity of litigation about the same issues, and saved Mr. Bishop and Mr. Hargreaves from the double jeopardy of repeated hostile cross-examination.

52.

In my judgment it cannot be said that, in these respects, the judge omitted any relevant considerations, or took into account irrelevant considerations, still less that his conclusion on that aspect of the abuse allegation was perverse or plainly wrong. On the contrary, in my view it was right. It is hard to imagine a case in which the dispute between all the potential parties could cry out more strongly for determination at a single trial.”

It is also my view that the rule in Henderson v Hendersoncan be applicable following discontinuance of a claim. I respectfully agree with the analysis of Mr Tom Leech KC (as he then was) in King v Kings Solutions Group Ltd [2020] EWHC 2861 and his conclusion that:

“113.

In my judgment, it remains open to a party to rely upon Henderson v Henderson abuse of process where the first claim has been discontinued as well as resulting in a judgment or compromise. With the greatest of respect to HHJ Matthews (Ward-v-Hutt 2018 EWHC 77Ch) his decision on this point was not necessary for his decision because he had already decided to strike out the claim for failure to comply with CPR Part 38.7.”

In my view it is plainly an abuse of process for a Claimant to bring a claim of deceit against a company relying on the acts of a person, then discontinue that claim (reaching an agreement whereby no further claims will be pursued) and then at later stage (after further significant delay) seek to bring the same allegations of deceit using the vehicle of contempt proceedings against the individual. Given the content of the 2019 proceedings, allowing the allegations of contempt and 1-7 to proceed would offend against the principle of finality in litigation and that a person should not be “twice vexed in the same matter”. In my judgment it would amount to unjust harassment, and having regard to all the circumstances, Ms Shand is abusing the process of the court by seeking to raise issues which were raised before (or should have been raised) in proceedings which were discontinued.

Fourthly, Mr Kemkers’ evidence is that he had an honest belief in the truth of both of St James’ Defences when he authorised St James’ solicitors to sign them. The legal team drafted the defence based on available documentation and “some limited factual confirmations” from Mr Kemkers. He has also set out that he is not a lawyer and had no reason to question the approach taken in respect of legal issues. In so far as the allegations concern the decision to plead non admissions i.e. to put Ms Shand to proof of her allegations these cannot sensibly amount to contempt. As I explained to Ms Shand a non-admission is distinct from a denial as the former does not assert a contrary positive case; it just states that the Claimant must produce evidence to support the assertions made to their full extent. An example is Count 6 in respect of the non-admission that Ms Shand had suffered “extreme discomfort, distress and inconvenience” as a result of St James’ alleged breaches. Ms Shand has converted this into a denial that she had suffered “any discomfort, distress or inconvenience”, coupled with the supposition that any questioning of her position must be dishonest. This is misconceived.

In any event many of the non-admissions complained of stem from the very defects in Ms Shand’s own pleadings in the 2012 Proceedings, in respect of which she has already sought to blame Mr Trompeter. She also founds her present case on legislation (such as Part H of the Building Regulations) which was not set out in the 2012 Proceedings.

The false statements Mr Kemkers is alleged to have authorised St James to make fall into three categories:

Dealing with the individual counts;

Counts 1-7 which relate to the 2012 proceedings were raised only after excessive delay and I refuse permission and in the alternative would strike these counts out on this ground alone. Also the counts are being advanced for an improper collateral purpose and again I would also have refused permission and the alternative would have struck these counts out on this ground alone. Further to the extent that the allegations could ever properly be advanced they should have been advanced in the 2019 proceedings, and I would also have refused permission and in the alternative would have struck these counts out on this ground alone.

Further counts 1-4 allege a “failure to plead” to allegations and are misconceived.

Count 5 relates to paragraph 14 of the defence in which it is stated that “so far as it relates to the landlord, it is denied that what is pleaded in paragraph 24-26 constitutes breaches of obligations by the landlord, for the reasons pleaded above, further or alternatively, so far as necessary the landlord adopts the manager's defence”. The extent to which St James had derogated from its grant, had breached the covenant of quiet enjoyment or was in breach of section 4(1) Defective Premises Act 1972 were legal issues upon which Mr Kemkers was entitled to take, and follow, legal advice. Further, and as set out in the detailed response to the counts at annexed to Ms Evans KC’s skeleton, in contradiction to what she now asserts Ms Shand pleaded against her own Counsel in the 2019 claim that what he had pleaded failed to amount to a breach of the Landlord’s obligations.

Count 6 relates to a denial that the claimant had suffered “extreme discomfort distress and inconvenience”.

Count 7 relates to a denial that Ms Shand had suffered loss and damage for which St James was legally liable or causally responsible. This is different to denying that she suffered loss and damage and reflected legal advice as to liability.

Count 8 adds nothing to counts 1-7.

The Counts in respect of the 2012 proceedings are wholly misconceived and lack any merit.

Counts 9-15 relate to matters which were set out in the 2019 proceedings and were raised only after excessive delay and I refuse permission and the alternative would strike these counts out on this ground alone. Also the counts are being advanced for an improper collateral purpose and I would also have refused permission and in the alternative would have struck these counts out on this ground alone.

Count 9 relates to paragraphs 21 and 22 of the defence which Ms Shand alleges deliberately painted and/or help to paint a false and misleading picture that none of the allegations were true. However paragraph 21 of the defence stated that

“a substantial part of the particulars of claim does not concern the 4th defendant and is therefore not pleaded to. Insofar as such paragraphs have any bearing against the 4th defendant they are not admitted and the claimant is required to prove the same.”

The reference to the Particulars of Claim (which were 129 pages long) is correct and/or at least an evaluative comment. Paragraph 22 is a general denial to the extent that matters and not admitted or responded to. There is no prospect whatsoever of establishing that Mr Kemkers was knowingly responsible for an untrue statement in respect of either paragraph.

Count 10 refers to paragraphs 17 and 18 of the defence which referred to the defences of OM and St James in the 2012 action and stated

“Copies of these pleadings are at appendices B and C of the Particulars of Claim and are taken as read. They provide the necessary background detail without needing to be repeated herein.”

Again there is no prospect of establishing that Mr Kemkers was knowingly responsible for an untrue statement in respect of either paragraph. In so far as there was some form of implied endorsement of the 2012 defence, as set out above, there is no merit in any allegation that he was knowingly untruthful.

Count 11 is an allegation that Mr Kemkers painted a deliberately false picture in that he stated (in effect) by the general denial at paragraph 4A of the defence that had never engaged in a conspiracy or committed any contempt of court in the 2012 action. For the reasons set out above in relation to Counts 1-7 this allegation has no prospect of success.

Count 12 relates to paragraph 31 of the Particulars of Claim and paragraph 28 of the defence. Ms Shand pleaded that St James owed a statutory duty of care under section 4(1) of the Defective Premises Act and the defence averred that section 4 only applies where premises are let on terms which put the landlord under an obligation to maintain or repair the demise premises. Here there was no such obligation within the lease i.e. Ms Shand was liable for repairs to the demised property. Accordingly there is no prospect establishing that Mr Kemkers was knowingly responsible for an untrue statement in respect of this assertion as to the legal effect of the lease. The allegation is misconceived.

Count 13 is in substance a repeat of Count 9 and adds nothing.

Count 14 relates to paragraph 34 of the defence which denied any and all liability for all or any part of the schedule of loss. There was no detailed pleading in response to the item set out within the schedule. Again there is no prospect of establishing that by this paragraph Mr Kemkers knowingly made an untrue statement.

Count 15 relates to paragraph 9 of the defence which stated that St James reserved the right to argue generally that any of the alleged claims were time barred due to the provisions of the Limitation Act 1980. This pleading merely reserves the right to argue that in respect of any or all of the matters alleged in the particular claim Ms Shand was out of time. Given that the history of matters stretched back further that a period 12 years before the issue proceedings (i.e. before 20^th June 2007) the pleading is unsurprising and there is no prospect whatsoever of establishing that by this paragraph Mr Kemkers (who was entitled to rely on legal advice) made a knowingly untruthful statement.

Count 16 adds nothing to counts 9-15.

The allegations at Counts 9-16 have no merit and no prospect of success. In the absence of delay and collateral purpose I would have refused permission or in the alternative struck out all the counts as either misconceived or failing to establish any, let alone a strong prima facie case.

I refuse permission in relation to and/or strike out counts 1-7 and 9-15 and strike out counts 8 and 16. The allegations are totally without merit.

I will deal with the additional material served after the hearing and the impact upon these conclusions in due course.

Mr Brown’s involvement in the protracted history of litigation concerning Ms Shand’s flat is that he was the partner of Mishcon who signed the statement of truth on its defence in the 2019 Action. Ms Shand accepted that the case against Mr Brown was weak.

There are 11 allegations against Mr Brown.

The first and in my view unanswerable submission made by Ms Mulcahy KC in response to the allegations against Mr Brown is that all of the allegations made against Mr Brown seek to relitigate aspects of the claim against Mishcon in the 2019 Action. The proper forum for testing these allegations would have been a trial of the professional negligence claim against Mishcon. I have already set out the principle established in Henderson-v-Henderson and that the rule can apply following the discontinuance of a claim (or settlement).  It is obviously inappropriate and an abuse of the process of the court for Ms Shand to seek to relitigate these allegations through subsequent contempt proceedings.

I also accept Ms Mulcahy’s submissions that:

Count 11 is a ‘rolled-up’ allegation. It is bound to fail for the reasons that the ten specific allegations are bound to fail.

On the evidence before the Court at the hearing I would refuse permission to proceed with any of the allegations. If permission had not been needed I would have struck the allegations out as an abuse of process of the Court. It is also my view that the permission application against Mr Brown was totally without merit.

I will deal with the additional material served after the hearing and the impact upon my conclusions in respect of the allegations against Mr Brown in due course.

There are three allegations of contempt against Mr Levy.

Counts 1 and 2 allege that Mr Levy made false statements in a document (his statement made in 2020 but within the 2019 action) verified by a statement of truth knowing that it was false, or being reckless as to whether it was true or false. As I have set out above recklessness is not sufficient to support an allegation of contempt.

Count 1 alleges that Mr Levy deliberately painted a false and misleading picture that he never deliberately misled Ms Shand and that there was no breach of fiduciary duty. Specifically

Count 2 alleges that Mr Levy painted or help to paint a false and misleading picture that Mr Warren was trusted senior member of the team at the time Ms Shand was raising her complaint against Mr Warren in January 2014 (Ms Shand alleges that Mr Levy knew that Mr Warren was a junior member of the team).

Count 3 alleges a fraud on the Court by Mr Levy by deliberately misrepresenting and concealing facts. It alleged that Mr Levy;

It is necessary to make two overarching points.

Firstly although Mr Levy was not personally named as a defendant in the 2019 action allegations of fraud and dishonesty against him formed a central part of the claim against Mishcon. It was alleged that Mr Levy’s conduct was in furtherance of a conspiracy to injure Ms Shand by unlawful means by perverting the course of justice by abusing his position and concealing and/or tampering with and/or destroying evidence and that

“DL dishonestly intended by means of that abuse to cause C to suffer substantial mental and financial distress (loss and damage) to the benefit of JW, DL, OM Limited, St James and Mr Trompeter.”

It was stated within Particulars that;

“In the Tort of deceit all of DL’s assessments and feedback to C about JW of D1’s handling of C’s claim and JW of D1’s intentions could not have been further from the truth and were deliberately misleading…”

As set out above those allegations were discontinued (Ms Shand discontinued all claims based on conspiracy, deceit and dishonesty leaving only the negligence claim). A subsequent application to set aside the notice of discontinuance failed and Ms Shand eventually accepted a Part 36 payment in the action became automatically stayed.

Secondly Ms Shand made a complaint against Mishcon on 17^th August 2016. Triton investigated that complaint and as a result Mishcon admitted that Ms Shand’s 2012 claim was lost as a result of its negligence. The admission was repeated in the 2019 action. However, an admission of professional negligence does not axiomatically require that all the losses which a claimant may allege result from the negligence must be admitted. There may be a genuine dispute as to the extent of the losses. When the negligence relates to a litigation the Court has to assess the “loss of a chance” for the Claimant of success in the litigation. I have not been asked (and could not on the available evidence before me) assess whether the Part 36 offer constituted a “fair” settlement of the negligence claim.

I turn to the individual counts.

The majority of matters alleged under Counts 1 and 2 repeat, or are part and parcel of, the claim advanced in the 2019 Actionconcerning Mr Levy’s personal conduct i.e. that he was deceitful in his “assessments and feedback to C about JW”. As I have already set out above in relation to the allegations against Mr Kemkers and Mr Brown it is plainly an abuse of process for Ms Shand, who had brought a claim of deceit against a company based on the actions of an individual, discontinued part of that claim (and regards the claim against Mishcon settled the remaining aspects), to subsequently seek to bring by way of contempt proceedings essentially the same allegation of deceit, based on the same actions, against the relevant member of the company. Put simply if Ms Shand wanted to pursue allegations of deceit against Mr Levy arising out his actions/statements in 2013/14 about Mr Warren (or his supervision of Mr Warren) she should have made all material allegations within in her 2019 claim and pursed them. Mr Levy’s 2020 statement was made within the 2019 action when it was still ongoing. It is an abuse to seek to raise or re-raise these issues now, years after the 2019 action was discontinued.

In the section setting out Count 1 against Mr Levy there is also what Ms Mulcahy KC referred to as a “fresh” allegation of a breach of fiduciary duty, relating to a conflict of interest. I shall return to this allegation later in the judgment given the further evidence provided after the hearing.

The failure to advance in 2019 (itself some years after the events) what Ms Shand now seeks to advance also gives rise to the issue of delay. The allegations of contempt concern matters over eleven years before the contempt proceedings were issued (in May 2025). Whilst My Levy may be able to recall many aspects of what occurred in 2013/14 (and prepared a statement coving some of the issues in 2020) it is inevitable, and a matter of common sense, that over a decade later his memory of some elements would not be as good as it was. There is a strong public interest in allegations of contempt, given their seriousness, not being delayed.

It is also necessary to consider whether a prima facie case has been established. The allegation of fraud against Mr Levy has been denied by him twice: both in his 2020 statement at paragraphs 29-33 and within the statement for these proceedings. I accept Mr Mulcahy KC’s submission that on the basis of the evidence supporting the 2019 claim and this application it is fanciful to suggest that Mr Levy would have wholly betrayed the fundamental ethical principles of his profession to become part of a conspiracy , including with the other side to the litigation to sabotage Ms Shand’s claim (which is what she alleged in the 2019 Action). Also the firm’s response to Ms Shand’s case being struck out was to appoint an independent law firm to investigate and, when that investigation concluded that there had been failings, to admit liability and offer to pay a substantial sum in compensation. 

As regards the specific statements alleged to be deliberately untrue these are;

I take these in turn. The first allegation is that Mr Levy deliberately gave a false picture that he had read the whole of the file. Ms Shand sets out that Mr Levy stated in e-mails that

“I will take a look at the file” (italics added) and that he had “considered the file” and “I can see…” and “I can also see…”

In the 2020 statement made within the 2019 action Mr Levy stated:

“On the 14th of January 2014 I sent the Claimant an e-mail responding to her concerns and suggesting a way forward…I can see that this e-mail refers to my “having discussed the matter with Jonathan and considered the file”. To be clear, I did not read the file. I was addressing general and specific inquiries raised by the Claimant and it would not have been a proportionate response to have carried out a full file audit. When I said I considered the file I meant that I considered the matter with Mr Warren, which I had.”

Whilst the wording used in e-mails may not have been as clear as it could have been given that Mr Levy had not read the file, there was no unequivocal statement by Mr Levy that he had read the whole of the file. The highest it can be put is that it is an inference intended from the comments made. This falls well short of the evidence of a prima face case bearing in mind that contempt as to be established to the criminal standard.

Mr Levy’s statement in these proceedings sets out Mr Warren’s career history and his job titles at various points in time. As that summary confirms, the Triton Letter was wrong to suggest that Mr Warren was a ‘Managing Associate’ at the time of events which gave rise to Ms Shand’s initial complaint. He was a Managing Associate at the time of the Triton Letter but not in January 2014 when Mr Levy was corresponding by email with Ms Shand. However, Mr Levy did not say at anytime that Mr Warren was a Managing Associate. He referred to Mr Warren as a “senior member of my team”. At the time of the events giving rise to the complaints in early 2014, Mr Warren had been fully qualified for five years (Mr Warren was admitted as a solicitor on 15^th September 2008 and joined Mishcon on 1^st June 2010 as a solicitor and then was an associate (term used by the firm) and there is nothing obviously incorrect/dishonest in Mr Levy referring to him as a “senior” member of the team; this being a evaluative/relative comment given the make up of his team and levels of experience amongst solicitors generally. Whether Mr Levy was right to rely on Mr Warren is irrelevant to the question to be addressed on this application, which is whether there is a strong prima facie case that Mr Levy did not in fact consider Mr Warren to be a senior and trusted member of his team and therefore gave false evidence when he described him as such. There is simply no evidence to adequately support that allegation.

Ms Shand has produced no evidence to support her allegations that Mr Levy (who was the partner overseeing Mr Warren and not the file handler) knew about the permanent defects (in the soil stack systems) and blight on the flat and/or knew the defence of St James was false and misleading and/or knew that Mr Kemkers did not have an honest belief in the defence to the 2012 action and/or knew OM’s defence was false and misleading. The simple and plain reality is that these allegations, which concern his knowledge of the knowledge possessed by the other side in a claim are baseless and fanciful.

As for the settlement negotiations there is also no evidence that these were not conducted fairly and in good faith. As I have stated I cannot assess the relative merits of the quantum claim nor the extent to which the settlement reached was fair or a “good result” for either side.

As for the allegation that the Triton letter was not a fair and even handed assessment of Ms Shand’s complaint this assumes what needs to be proved (and has not been) before even considering the lack of evidence that Mr Levy knew it to be as such.

In my judgment given the analysis set out above there is no strong prima facie evidence of Mr Levy being dishonest in his interactions with Ms Shand concerning Mr Warren or fraudulent in his interaction with the Court. I would have refused permission on this basis.

It is also noteworthy that the allegations against Mr Levy and Mishcon have been repeatedly investigated by the Solicitors Regulation Authority which has concluded that no allegation of professional misconduct should be pursued. There is significant force in the assertion that the public interest in the court investigating matters of contested contempt concerning the conduct of litigation is undermined in circumstances where the specialist regulator has already concluded that the allegations (repeatedly) do not require further consideration. This factor also has to be taken together with the long delay in making these allegations. Combined they mean that the allegations do not have sufficient public interest to proceed. I would also have refused permission on this basis alone.

Further, and in any event, the allegations should have been brought within the 2019 action and bringing them now is an abuse of the process of the Court. I would have refused permission/struck out the allegations on this basis alone.

Finally it is my view that the application against Mr Levy has a clear collateral purpose driving the application in that Ms Shand is seeking (for a second time) to resurrect the 2019 proceedings and her long running war (with many fronts) in relation to her flat. That this is the case is obvious from the relief sought (which could not be obtained in contempt proceedings) of the setting aside her notice of discontinuance in the 2019 action and setting aside the Part 36 settlement. Contempt proceedings are aimed at protecting the public interest in the administration of Justice not the furtherance of an underlying dispute and in my view the application is an abuse of the court procedure and Ms Shand would not be a fit and proper person to pursue them given her goals and consequential lack of balance or the appropriate degree of independence (or ability to pursue the matters in the required proportionate manner). Again and for the avoidance of doubt I would have refused permission/struck out the allegations on this basis alone.

For the reasons set out above I refuse permission in relation to Counts 1 and 2 and strike out count 3 as devoid of merit and also an abuse.

I now return to the final outstanding matter as regard the contempt application the element of Count 1 which is a “fresh” allegation of a breach of fiduciary duty, relating to a conflict of interest.

Ms Shand alleged within the detail supporting Count 1 that Mr Levy was duty bound to inform her about a serious conflict of interest that would prevent Mishcon from acting or continuing to act on her behalf. She stated that Mr Levy knew the identity of the two Defendants in the 2012 action; St James and OM and also knew that the Berkeley Group was a very high profile client of Mishcon (it was impossible for him not to have known this given his status in the property litigation department). St James is a member of the Berkeley Group. Ms Shand stated:

“The claimant now believes from our own research that the Berkely Group has been a “widely touted and major client” of Mishcon de Reya since at least the time of the Claimant’s instruction of Mishcon de Reya in February 2013 ( see section entitled “conflict of interest” in Part 1 and the supporting evidence in bundle 1)…Mishcon’s failure (by Mr Levy) to disclose the material fact that the Berkley Group was a key client to the firm and to immediately stop acting for the Claimant in January 2014 when Mr Levy became aware of the complaints about Mr Warren instead of continuing to act until May 2016, was an extremely serious breach of the trust that the Claimants had reposed in Mr Levy and the fiduciary duty that Mishcon (by Mr Levy) owed to the Claimant.”

Within the essential background fact set out within the Particulars of Contempt Ms Shand stated (at paragraph 307) that she

“believes that on the balance of probabilities the conduct of Mr Levy and Mr Warren in the 2012 Action was motivated by a conflict of interest which they failed to disclose to the Claimant.”

Mr Levy’s statement in these proceedings specifically addresses the allegation of a conflict of interest at paragraphs 8-11

“8.

The Applicant has suggested on several occasions that during the period that she instructed MdeR to act on her behalf in a claim that she was making against defendants including St James Homes Ltd ("St James"), namely February 2013 to May 2016, MdeR was acting in conflict, as (i) it was acting for The Berkeley Group PLC ("Berkeley"), the grandparent of St James, on its purchase of a property then known as Marco Polo House and (ii) that Berkeley was an important client of MdeR.

9.

MdeR did not act for Berkeley on the purchase of Marco Polo House. As stated on MdeR's website, which is publicly available, MdeR acted on the sale of Marco Polo House, i.e. it acted for the seller, not for the purchaser, Berkeley.

10.

When opening the Applicant's matter, MdeR carried out a conflict check in accordance with its regulatory obligations and standard procedures. It did not reveal a conflict and the matter was cleared to open. For the avoidance of doubt, I did not act for St James, who were represented by Eversheds LLP (now Eversheds Sutherland LLP) and did not act in conflict.

11.

In order to make this statement, MdeR’s compliance team were asked to investigate the relationship with companies in the wider Berkeley Group. While I am unable to provide details of this investigation for reasons of client confidentiality, I have been informed of the results of that investigation and it does not indicate that MdeR acted on any matter which was connected to the Applicant’s case or which gave rise to confidentiality issues.”

That a conflict of interest check had been carried out is supported by Mr Warren’s e-mail of 26^th February 2014 (cited by Ms Shand in her Particulars)

In her Skeleton Ms Mulcahy KC stated;

“As Mr Levy explains at §§ 10-11, the question of conflict has been fully investigated and it remains Mr Levy’s belief that there is no conflict of interest which should have prevented Mishcon from acting. There is no evidence which would justify this court going behind that conclusion, still less which would justify it reaching the conclusion that, as Ms Shand now alleges in her Contempt Particulars at §312 (that), the conspiracy against her was fuelled by this (non-existent) conflict of interest.”

The issue of conflict was not covered in great depth in the hearing and as set out above on the material produced before/at the hearing Ms Shand had no realistic prospect of establishing that Mr Levy was duty bound to inform her about a serious conflict of interest that would have prevented Mishcon from acting or continuing to act on her behalf.

After the hearing had concluded Ms Shand produced a 38 further page statement which was accompanied by further documents and files and which concerned the “serious” conflict of interest which she had identified.

Ms Shand stated that she came across the material in the early hours of 22^nd November 2025. During “some completely random browsing”, she found old promotional videos on YouTube that were produced by Mishcon about annual property parties in2014, 2015 and 2016 whilst she was a client of Mishcon.

The Second to Fourth Defendants objected to the statement being taken into account as it was served after the hearing and the information it contained could have been obtained and served beforehand. On Ms Shand’s own evidence it could be found by “random browsing” on the internet (although Ms Shand also stated that the video “is not in a prominent position on the internet and it is difficult to search for and find”).

I considered the statement on a provisional basis (sometimes referred to in cases as considering it “de bene esse”).

The statement sets out detail of “property parties” which Mishcon co-hosted with the London Chamber of Commerce (the“LCCI”) of which Mr Tony Pidgley was the President. Mr Pidgley was also the Chairman of the Berkeley Group and a Director at St James.

In the material years for this claim a global conference took place in Cannes for real estate professionals and companies from around the world. The event was known as Pre-MIPIM. Around February each year just before the start of the global MIPIM, Mishcon co-hosted a party to which it invited clients, organisations in the real estate sector, politicians, journalists and others attending the MIPIM; the “Pre-MIPIM real estate party”. The aim was to provide an opportunity for building connections and networking prior tothe start of the global MIPIM.

Ms Shand states

“On watching the promotional videos it is very clear that there existed a very positive and improving connection and personal/business relationship between Tony Pidgely and Susan Freeman and Nick Doffman of Mishcon’s Real Estate Practice……The co-hosting partnership strengthened the relationship between Tony Pidgley and Nick Doffman’s Real Estate Practice.”

Ms Shandbelieves thatduring the time of the co-hosting partnership Berkeley Group

“was either a prospective client or an existing client of Mishcon, a business of significant interest to the Real Estate Practice of Mishcon.”

She provided no further evidence to support the assertion that it was an existing client.

Distilling the new statement down the central factual matters upon which Ms Shand relies are as follows;

Ms Shand believes that

I have carefully considered the content of the further /additional statement and reconsidered the allegations of contempt.

In my view Ms Shand has built an elaborate conspiracy on pillars which cannot provide it with adequate support. The first, and obvious, problem with what she asserts is that neither Mr Pidgley nor the Berkeley Group Holdings Plc/St James, of which he was a director was a client of Mishcon at any material time. Therefore there is no reason to doubt the accuracy of the statements;

“When opening the Applicant’s matter, MdeR carried out a conflict check in accordance with the regulatory obligations and standard procedures. It did not reveal a conflict and the matter was cleared to open.”

Perhaps recognizing this difficulty Ms Shand states that she believes that the co-hosting of the events with the London Chamber of Commerce of which Tony Pidgley was President was an “own interest conflict”and a “practice area conflict”. The SRA glossary defines an own interest conflict as:

“any situation where your duty to act in the best interests of any client in relation to a matter conflicts, or there is a significant risk that it may conflict, with your own interests in relation to that or a related matter.”

However many large legal firms are regularly involved in professional and/or marketing events and the attendance or involvement of an individual, a fortiori due to his/her role in a professional body, at such an event does not axiomatically create an own interest/practice area conflict which should have been recorded (in a register of own interests or otherwise) and acted upon. Mishcon did not co-host the parties with Mr Pidgley; it co-hosted then with the LCCI. Many people who attended might have been potential clients of Mishcon and, I would think sensibly given the sector involved, the involvement of the LCCI and the size of the events, some would have been opposing parties within litigation conducted by Mishcons. The suggestion that these parties created a conflict which somehow caused or influenced Mr Warren, a solicitor employee, to act as he did i.e. that this was not a serious mistake but act of sabotage of his client’s own case is, to put it simply, fanciful.

Ms Shand has developed a theory based on emotional conviction and has drawn conclusions from the co-hosting of these events that are simply not sustainable. The additional statement does not alter my conclusions in relation to the allegations against Mr Levy and I see no adequate basis within this additional material for the assertion that Mr Levy has been intentionally misleading in any witness statement.

Mr Brown was the “Compliance Counsel” at Mishcon whilst Ms Shand was a client of Mishcon. Ms Shand does not know who was responsible for conducting the original conflict check inFebruary 2013 when Mishcon took on her case and she does not know if the responsibilities of Mr Brown included conflict management andthe processing of conflict check requests and reports. Ms Shand refers back to the defence of Mishcon in the 2019 Action (verified by a statement of Truth signed by Mr Brown). Within the defence it was stated that:

“D1 does not accept it acted in breach of any fiduciary duties it owed to C. D1 does not believe that there was anything deliberate about D10’s shortcomings, as described at paragraph 29 above. D10’s professional errors do not appear to have arisen from any conflict between his or D1’s duties to C or his or D1’s duties to any other legal person.”

There is nothing in what Ms Shand has produced that amounts to evidence that this statement is incorrect let alone knowingly untruthful. The reality of the matter is simple; Mr Warren made a serious error and Mishcon accepted that an error had been made and have paid compensation. Proving that the error was deliberate and part of a wider conspiracy is a very different matter and Ms Shand has not come close to establishing a credible case to support her allegations.

Ms Shand also seeks to draw support from the additional material for her allegations against Mr Kemkers. She notes that he stated that he was not aware of any conflict; but Ms Shand states that he “must have known” about the MIPIM partnership as Mr Kemkers was sharing monthlyprogress updates about her case and the 2012 Action with Tony Pidgley (who was also a Director at St James).

At paragraphs 66 and 67 of Mr Kemker’s witness statement dated 3 October 2025 he denied any knowledge of a conflict of interest including a conflict withNick Doffman. He said:

“I am not and have never been aware of any conflict between the individuals named (or indeed any individuals at Mishcon) and Berkeley Group regarding Ms Shand (or any conflict between these parties at all).”

Ms Shand states that she believes that Mr Pidgley, a close colleague of Mr Kemkers, knewthat Mishcon was acting with a conflict of interest because he knew of his own connections to Mishcon and his personal, partnership and co-hosting relationship with Susan Freeman and Nick Doffman. She states that he must have told Mr Kemkers. Again the allegation against Mr Kemkers is fanciful and also assumes what it needs to prove i.e. that Mishcons had, and knew it had, a conflict because of the co-hosting of parties with the LCCI.

I should make it clear that I have not considered all the material which accompanied the statement (I have viewed the 2014 and 2015 clips) as it would not be proportionate to do so given that, taken realistically, the statement adds nothing in support of the allegations made by Ms Shand.

The material submitted after the hearing could, and should, have been produced before the end of the hearing. The fact that further, and doubtless significant costs, were not incurred reading and responding to what has been produced is fortunate. Given the late production and lack of relevant assistance on the issues to be determined it would be wrong to admit the evidence. If I had admitted it my conclusions would have been unaltered.

Ms Shand has made serious allegations against six individuals. Where permission to pursue them is required I refuse it. In any event I would strike out all the allegations on the ground that they have no realistic prospect of success and/or are an abuse of the Court’s process.

In my view the allegations would all be bound to fail and the applications for permission to proceed against the six Defendants are each totally without merit.

By Application Notice dated 7 October 2025, Ms Shand applied for

No application has been made in respect of the stay imposed by the Tomlin Order compromising Ms Shand’s claims against St James.

Within the application Ms Shand referred to Advantage-v-Harris [2024] EWHC (see paragraph 102 above) and stated that the application was not intended to raise any new matters (in addition to those raised by her Part 8 Proceedings) rather it was “designed to provide the Court with a proper basis to lift the stay imposed by (her) acceptance of the Part 36 Offer if the Court was satisfied that her contempt applications had merit and should therefore be permitted to proceed. Ms Shand referred to CPR 81.3 (and the commentary in the White Book) which sets out that

“CPR Part 81.3

(1)

A contempt application made in existing High Court or county court proceedings is made by an application under Part 23 in those proceedings, whether or not the application is made against a party to those proceedings.

(2)

If the application is made in the High Court, it shall be determined by a High Court judge of the Division in which the case is proceeding. If it is made in the county court, it shall be determined by a Circuit Judge sitting in the county court, unless under a rule or practice direction it may be determined by a District Judge.

(3)

A contempt application in relation to alleged interference with the due administration of justice, otherwise than in existing High Court or county court proceedings, is made by an application to the High Court under Part 8.”

Although she did not address me in detail on the issue it seems to me likely that Ms Shand believed that if the 2019 proceedings were “existing” proceedings (an issue she became aware of after she had issued the part 8 Proceedings) then she needed to make an application within them and in order to do so needed to lift the stay. However Ms Shand had already commenced a Part 8 claim and the issue as to whether permission was needed for allegations was determined within those proceedings and no argument was raised that an application within the 2019 proceedings was needed as opposed to a Part 8 claim. Also the requirements of permission in CPR 81.3(5) apply to the allegations and that is the case whichever route is taken. All allegations concerning false statements of truth require permission, even if made in existing proceedings. The application has, in fact, served no purpose in these proceedings. Although I can understand why Ms Shand believed that she needed to make it, she should have liaised with the Defendants before issuing it (and they may well have confirmed that it was not necessary).

For the reasons set out above to the extent that permission is not needed in respect of the allegations made in relation to the 2019 proceedings I strike them out and otherwise I refuse permission. So if Ms Shand had chosen to solely issue an application to lift the stay in relation to the 2019 proceedings allegations the result would be the same; the allegations would not be proceeding.

Ms Shand also sought an order reopening the 2019 Action within the remedies sought. For the avoidance of any doubt I make it clear that I cannot see any arguable basis for lifting the stay to allow the action to proceed on the basis of the contempt allegations or otherwise. The claims were settled by the acceptance of a Part 36 Offer and Ms Shand received £290,000 in settlement of the claim (the actual payment sum was less, as it was paid net of other costs liabilities Ms Shand had incurred).

As for costs the starting point under CPR 44.2 (2)(a) is that the unsuccessful party will be ordered to pay the costs of the successful party. If the parties cannot agree costs after time for the consideration of this judgment I will hear submissions.

As a result of the matters set out above I dismiss the application.

On 26 September 2025 Ms Shand brought Part 7 proceedings against Mishcon and DWF. Whilst the claim has not yet been served it was provided to the Defendants informally on 2^nd October and the scope of the claim can be seen both from the Brief Details of Claim and Ms Shand’s pre-action correspondence. 

The Brief Details of Claim state:  

“D1 (by Mr Levy) breached the fiduciary duty of care D1 owed to the Claimant in 2014 when Mr Levy provided deliberately false and misleading advice to the Claimant in response to a complaint by the Claimant about Mr Warren’s conduct and handling of case reference 2YM71662 (the “2012 Action”).

D1 and D2 engaged in an egregious conspiracy to injure by unlawful means intended to deliberately mislead the Court, to interfere with the due administration of justice and to cause loss and damage to the Claimant during civil proceedings case reference BL-2019-001173 (the “2019 Action”) and case reference BL-2020-001764 (the “2020 Action”).”

The value of the claim is said to be in excess of £500,000.

By an application made on the 5^th November 2025 the Defendants have applied to strike out the action under CPR 3.4(2) (a) and/or CPR 3.4( 2) (b) as being totally without merit. CPR 34.4 sets out that;

“(2)

The court may strike out a statement of case if it appears to the court –

(a)

that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b)

that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings;”

The application is supported by the second witness statement of Ms Harriet Quiney which exhibited Ms Shand’s letter before action (157 pages). I have also been provided with a comparison table of the allegation in the contempt proceedings and the letter before action in the 2025 Action.

On behalf of Mishcon and DWF Ms Mulcahy KC submitted that it is clear that the subject matter of the 2025 Action is the same as that within the contempt allegations and also that;

Ms Mulcahy KC submitted that the substantive allegations of breach of a fiduciary duty (through deliberately misleading advice to Ms Shand) and conspiracy to injure are the same as those which underpin the contempt allegations. Not only are the headline allegations the same, but many of the particulars found in the letter before action are identical to, or materially the same as, the equivalent paragraphs of the contempt particulars. Specifically

I accept Ms Mulcahy KC’s submission as accurate.

As to the legal basis for the application to strike out the 2025 Action Ms Mulcahy KC submitted as follows:

My analysis is as follows.

A claim form may be struck out notwithstanding that it has not been served. Whilst PD3 paragraph 2.1 refers to a situation where a Court officer draws a Judge’s attention to a particular claim form due to concerns about its content, this is because a Defendant would not usually have notice of issue of a claim form and ordinarily would challenge it only on its service. As paragraph 4.1 states the Court may exercise its powers under rule 3.4(2)(a) or (b) on application or on its own initiative at any time.

The Claim against Mishcon is clearly an abuse of the process of the Court. The settlement agreement reached by the acceptance of the Part 36 offer on 22 January 2021 bars any further claim based on the same facts/causes of action pleaded following discontinuance of the balance of the allegations. As for those wider allegations which were originally pleaded when Ms Shand discontinued the claim based on them she voluntarily chose not to pursue them. To allow a fresh action based on the matters raised in the 2019 action would plainly offend against the principle of finality and the rule in Henderson-v- Henderson (as set out at paragraph 173 above) and would allow an abuse of the process of the Court. As Lord Bingham stated a party should not be twice vexed in the same matter. For this reason alone the claim against Mishcon must be struck out.

Further, and as regards both Defendants, after taking into account:

For these reasons I strike out the 2025 action and declare it totally without merit.

Within the application dated the 5^th November made in the 2025 action Mishcon and DWF asks the Court to make an Extended Civil Restraint Order (“ECRO”) against Ms Shand (subject to the Court striking out the action and declaring it totally without merit).

The power to make an ECRO is contained in CPR 3.11:

The relevant practice direction is Practice Direction 3C, which provides for three kinds of civil restraint order, a limited civil restraint order, an extended civil restraint order, and a general civil restraint order.

The consequences of the three kinds of order differ. If made an ECRO means that a person is restrained:

“…from issuing claims or making applications in— …(b) the High Court or the County Court if the order has been made by a judge of the High Court; …concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made without first obtaining the permission of a judge identified in the order; ”

As regards the precondition for an ECRO that a party has “persistently” issued claims or made applications in CFC 26 Ltd v Brown Shipley & Co Ltd  [2017] EWHC 1594(Ch)Newey J (as he then was ) held, in agreement with previous first instance authority, that "persistence" in this context requires at least three totally unmeritorious claims or applications. This view was endorsed by the Court of Appeal in Sartipy (Aka Hamila Sartipy) v Tigris Industries Inc.

A person subject to an ECRO

“(2)

may apply for amendment or discharge of the order provided [s]he has first obtained the permission of a judge identified in the order; and

(3)

may apply for permission to appeal the order and if permission is granted, may appeal the order.”

An application that the Court consider a civil restraint order is, strictly speaking, unnecessary as CPR 33.4 (6) mandates consideration of a civil restraint order;

“(6)

If the court strikes out a claimant’s statement of case and it considers that the claim is totally without merit –

(a)

the court’s order must record that fact; and

(b)

the court must at the same time consider whether it is appropriate to make a civil restraint order.”

However, it is often the case (and is here) that a Court cannot properly consider whether or not an order should be made without assistance from a defendant/defendants to the claim/s as to the surrounding history.

The evidence filed in support of this application for an ECRO includes a schedule of complaints made by Ms Shand since 2012, which runs to 15 pages. It is abundantly clear from that schedule and the very large body of evidence before the Court for the determination of the applications for permission to proceed with the contempt allegations that Ms Shand is convinced of the existence of a very widespread conspiracy to cause her loss and damage and intends to bring all the participants (which have included her own solicitors and Counsel) to justice through legal actions. As she stated as long ago as 2018 in an e-mail to the financial ombudsman (as regards Mishcon, Mr Trompeter, Norwich Union, Berkeley Homes and OM) “we will need a coach to transport you all to trial - you and everybody else who has been covering up this fraud by trying to silence me so maliciously for 5 years”

Apart from the allegations which I have considered within this judgment Ms Shand has also made a number of other allegations which, on a common sense basis cannot be true; such as those within an e-mail to DWF in June 2024 alleging that the firm had “tampered and continue to tamper with my e-mails, my telephone, my contracts, my finances, my medical files and my medical (blood) test results (and so on, and 19 worse and not an exhaustive list!) in order to obtain private confidential information about me in order to identify potential vulnerabilities in order to harass me and in order to cause injury to my health, financial loss and damage”.

In my view the starting point must be recognition that Ms Shand did have a claim against Mishcons. She pursued it and obtained a settlement in the sum of £290,000. The OM Ltd Defence from the 2012 Action also suggests that this is in addition to the £130,000 which Ms Shand appears to have received via insurance in respect of the underlying defects in the Property.

However Ms Shand has also pursued a conspiracy theory and made a large number of serious allegations against a range of individuals. It is unnecessary to rehearse the full history of failed actions and applications. However the following matters are of importance.

Firstly, by an order dated 9 August 2018 made by the County Court at Central London in the 2012 Action an application to reopen the case (which had concluded with a judgment) was dismissed and declared totally without merit.  Ms Shand was subsequently to try and reopen the 2019 case after its conclusion.

Secondly, whilst I find it surprising, the order made by Chief Master Marsh striking out the 2020 Action did not also declare the claim as totally without merit although (it appears) he stated that the claim disclosed no reasonable grounds to support its existence and was bound to fail. Whilst I accept the submission that it may, in certain circumstances, be open to a Judge considering whether a civil restraint order should be made to reassess whether a previously determined claim or application should have been declared totally without merit, I regard this as an exceptional course and regard must be had to the potential effect upon a litigant of an order not having been made.

Thirdly, and as set out in detail above, I have

As Ms Mulcahy KC observed, litigation concerning building defects in Ms Shand’s flat has been on foot, in one form or another, for thirteen years and Ms Shand shows no signs of stopping. Whilst there may have been gaps in terms of litigation there have been associated claims pursued through the Financial Ombudsman, Legal Ombudsman, the SRA and Ms Shand’s MP. From 2021 at the latest Ms Shand has been repeatedly making allegations of very serious misconduct and dishonesty against a range of individuals/firms involved in her claims.

The existence of at least three orders declaring actions/applications to be totally without merit is a minimum requirement, but not axiomatically probative of persistence. However I am satisfied that Ms Shand has persisted in the making of wholly unmeritorious claims/applications in her pursuit of what she considers to be justice in relation to issues concerning her flat and if unrestrained will continue to do so.

Ms Shand has been, and will continue to be, undeterred by actions or applications being struck out (or having to discontinue them) and unless restrained I am satisfied that she will issue fresh applications/proceedings. As a result a limited civil restraint order would not meet the requirements of this situation because whilst it would prevent further applications being made in whichever claim (or claims) it was made, it would not prevent Ms Shand from commencing new claims. She has been willing to commence multiple claims in the past: see for example her initiation of the 2020 Action in parallel to the 2019 Action, or indeed the 2025 Action being brought at the same time as the Part 8 Contempt Proceedings. As recently as the Contempt Particulars she was proposing to issue civil claims against up to 18 defendants.

Having considered all the relevant history, including the very considerable amount of Court time spent and costs incurred in dealing with unmeritorious claims/applications and Ms Shand’s likely future conduct, it is my view that it is necessary and proper to make an ECRO. I have not reached this decision lightly and well recognise that it will be a real blow for Ms Shand who was very emotional at the prospect.

It is important for Ms Shand to note that the ECRO will not be a total bar on her making a fresh application or claim concerning these matters; it simply means that the Court’s permission is required, and she will have to persuade the Court that the proposed application or claim has some merit.

Given the longevity of the litigation and that the passing of time has not been a bar to making unmeritorious claims/applications I make the ECRO for a three-year term.