EXTRAORDINARY CASE: THE SOLICITOR MADE LITIGATION UP: THE CONSEQUENCES FOR THE CLIENT

The opening paragraphs of the judgment  set out an almost unbelievable set of facts in Islamic Investments Company of the Gulf (Bahamas) Ltd -v- Symphony Gems NV & others [2014] EWHC 377 3777 (Comm). The judgment considered the consequences for a litigant when the solicitor had been dishonest.

THE (ALMOST) UNBELIEVABLE OPENING PARAGRAPHS

Mr Justice Hamblen:

Introduction

  1. The facts giving rise to the present application are so extraordinary that they could have come from one of A.P.Herbert’s “Misleading Cases”.
  2. As with A.P. Herbert’s “Uncommon Law”, this case involves the false document literary technique – the creation of a sense of authenticity through the invention of documents which appear to be factual.
  3. The “author” in this case was Mr Andrew Benson, then a partner in Byrne & Partners LLP who was purporting to act for the Second Defendant, Rajesh Mehta (“RM”).
  4. From the end of October 2010 until December 2013 he conducted fictitious litigation for RM. That litigation involved fictitious hearings before the Commercial Court and the Court of Appeal; purported judgments of those courts; purported sealed court orders; a purported hearing transcript; purported skeleton arguments; purported correspondence with court officials and the Claimant’s solicitors, Norton Rose; the fictitious instruction and engagement of various counsel, and telephone conferences involving the impersonation of his senior partner and of leading counsel. None of this reflected reality. Throughout that period there was in fact no contact with Norton Rose or the court.
  5. The deception was finally discovered in December 2013 when questions were asked about a transcript of a purported hearing before Popplewell J. and his real clerk was contacted directly.
  6. Mr Benson has been dismissed from Byrne & Partners and is under investigation by the Metropolitan Police and the Solicitors Regulation Authority (“SRA”).

THE CONSEQUENCES FOR THE CLIENT

Mr Benson had been acting for Mr Mehta in real litigation.  Numerous adverse orders had been made against Mr Mehta in the course of that litigation, including a committal order.  He sought the setting aside of all adverse orders on the grounds that Mr Benson had been acting fraudulently and against his interests.  He argued that there was clear evidence that Mr Benson was misconducting the litigation deliberately. Mr Mehta sought the setting aside of the orders made pursuant to the court’s broad discretionary powers under CPR r.3.1(7).

THE RESULT

In a detailed judgment of 142 paragraphs Mr Justice Hamblen set out his reasons for refusing to set aside the orders made with the exception of the activated suspended committal order.

In relation to most of the adverse orders the judge was not satisfied that it had been shown that any of the alleged misconduct by Mr Benson impacted upon the orders made.

However in relation to the committal order there were a number of justifiable complaints.

  1. The evidence presently before the court justifies the criticisms made. These include a failure to prepare evidence for the hearing as instructed and advised by counsel; a failure to apply to the Court for an adjournment of the hearing on the grounds of RM’s serious ill health; misrepresenting the position in relation to the fixing of the hearing; giving the false impression on 24 September 2010 that an adjournment had been sought but refused by the Court; delaying in providing important evidence from the Claimant to be considered by the Court at that hearing; failing to ensure that there was any evidence in response; failing to instruct counsel to attend the hearing; wrongly informing the Court at the hearing that he was appearing without instructions; failing to follow those instructions by seeking an adjournment and, if that was refused, making positive submissions as to why no committal order should be made.
  2. These criticisms involve serious misconduct by Mr Benson in the preparation for and the conduct of this very important hearing. Notwithstanding David Steel J.’s understandable scepticism towards RM, his evidence and his last minute applications, I am satisfied that these failures significantly impacted on the order made and that an order would not have been made in the same terms had the Court been given a full and accurate picture of the position.

The judge concluded that there was considerable substance to some of the points made by the defendant. However this was an extraordinary case.

 

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

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