ANUP SINGH CHOUDRY v THE LAW SOCIETY OF ENGLAND AND WALES [2001] EWCA Civ 1665

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
(KENNEDY LJ, BUTTERFIELD AND HALLETT JJ)
[2001] EWCA Civ 1665Case No Case No: 2001/1846Venue Royal Courts of Justice, Strand, London WC2A 2LL, Monday 5 November 2001
Between
ANUP SINGH CHOUDRYClaimant/ApplicantTHE LAW SOCIETY OF ENGLAND AND WALESDefendant/Respondent
Before
The Master of the RollsLord PhillipsThe Applicant appeared in person.The Respondent did not attend and was not represented.Date 5 November 2001
[1]LORD PHILLIPS, MR: On this application Mr Choudry appears in person seeking permission to appeal against the judgment of the Administrative Court, consisting of Kennedy LJ, Butterfield and Hallett JJ, made on 30 July 2001 dismissing his appeal against the judgment of the Solicitors' Disciplinary Tribunal made on 31 October 2000. This matter originally came before me in the form of a paper application. It was out of time and I granted an extension of time, but I refused the paper application for permission to appeal on 11 September 2001. The applicant now renews that application by oral submission.[2]The main issue that arises is the interpretation of rule 30 of the Solicitors (Disciplinary Proceedings) Rules 1994. The relevant parts of rule 30 are as follows:
"(i) In proceedings before the Tribunal which involve the decision of another court or tribunal, the following rules of evidence shall apply provided that it is proved in each case that the decision relates to the relevant party to the application. .... (c) the judgment of any civil court may be proved by producing a certified copy of the judgment. (ii) In any case set out in paragraph (i) of this Rule, the findings of fact by the court or tribunal upon which the conviction, finding, sentence or judgment is based shall be admissible as prima facie proof of those facts."
[3]The circumstances in which the issue of the application of this rule arose were as follows. The applicant at all material times was acting as a sole practitioner under the firm name of Singh and Choudry. Between March 1986 and October 1992 he acted for a plaintiff, Dr Chohan, who was suing Times Newspapers Limited for libel. On 9 October 1992 the action was settled on terms which made The Times liable for Dr Chohan's costs. On behalf of Dr Chohan a bill of costs of £1.05 million was put forward by Mr Choudry. That sum was taxed down by Master Rogers to a little under £129,000[4]Times Newspapers took out a summons seeking a review of that final taxation figure, and an order that the plaintiff's costs be disallowed under Order 62 rule 28. That rule provides:
"(1) Where, whether or not on a reference by the Court under rule 10(2), it appears to the taxing officer that anything has been done, or that any omission has been made, unreasonably or improperly by or on behalf of any party in the taxation proceedings or in the proceedings which gave rise to the taxation proceedings, he may exercise the powers conferred on the Court by rule 10(1)."
[5]Rule 10 (1) provides:
"Where it appears to the Court in any proceedings that anything has been done, or that any omission has been made, unreasonably or improperly by or on behalf of any party, the Court may order that the costs of that party in respect of the act or omission, as the case may be, shall not be allowed and that any costs occasioned by it to any other party shall be paid by him to that other party."
[6]The court also has an inherent jurisdiction where there has been gross conduct or neglect, to direct that solicitors shall pay costs that have been incurred.[7]In seeking to have the plaintiff's costs disallowed under Order 62 rule 28, Times Newspapers alleged that the bill of costs was not a bona fide bill at all. On 5 May 1995 Drake J, sitting with assessors, gave directions, which included an order that the defendant's application in relation to the bona fides of the plaintiff's bill should be heard as a preliminary issue.[8]There have been complex proceedings, which are described in the judgment given by the Court of Appeal on 17 December 1999. In the course of those proceedings there was a lengthy taxation hearing before Master Rogers which lasted more than five and a half days. That lead to an application by Times Newspapers that the applicant's firm should pay the costs of the taxation. That application was refused.[9]The hearing of the preliminary issue as to the bona fides of the bill of costs came on before Nelson J in the middle of December 1996. It continued for two further days in January 1997. There was a further adjournment and further evidence was then adduced. The reserved judgment was not handed down until February 1998.[10]The judge directed himself that The Times needed to prove its case to the criminal standard, but found in favour of The Times. He found that various documents which had been submitted in support of the bill of costs were fabrications. He also found that Dr Chohan had not agreed to pay, or be liable for, the applicant's firm's costs to the extent set out in the costs bill, so that the costs were not recoverable under the indemnity principle. Most pertinently, he found that the applicant had been dishonest.[11]At the hearing, where the applicant's conduct was the central issue, his firm was represented by leading and junior counsel. However, it was not until the time of the judgment in February that both his firm and the applicant personally were joined as second and third defendants on the application of The Times. The applicant has said that this was simply in relation to the grant of an application for Mareva relief.[12]Despite this, it was the applicant's firm which applied to the Court of Appeal for permission to appeal the judgment of Nelson J. Permission was granted by Judge LJ. The appeal came on before Peter Gibson and Mann LLJ and Douglas Brown J and was dismissed in judgment dated 17 December 1999. At the start of the appeal both the firm and the applicant were represented by leading counsel. However, after addressing the court for a day, counsel for the applicant ceased to act. The applicant then adopted the argument which had been advanced. He added further submissions, addressing the court for more than a day. The appeal against Nelson J's judgment was dismissed.[13]In the judgment of the Administrative Court, against which the applicant seeks permission to appeal, the role of the applicant was described thus:
"Before Mr Justice Nelson the appellant was, in effect, a party to the action, a central figure whose conduct was being investigated with all the safeguards appropriate to a serious allegation made in civil proceedings. He had the benefit of legal representation. He was called as a witness, and he was cross-examined."
[14]Mr Choudry's conduct was then referred to the Solicitors Disciplinary Tribunal. The allegations made against him were that he had been guilty of conduct unbefitting a solicitor in each of the following particulars, namely:
"(a) That he lodged a bill of costs for taxation that he knew or ought to have known was excessive and/or improper and/or not lodged in good faith. (b) That in support of that bill of costs he lodged pro forma invoices and correspondence that he knew or ought to have known was false and/or misleading. (c) That in taxation proceedings he attempted to mislead the court. (d) That he acted in breach of his duty to the Court."
[15]The Solicitors Disciplinary Tribunal admitted as prima facie proof of the applicant's misconduct the judgment of the Court of Appeal under rule 30 of the Solicitors (Disciplinary Proceedings) Rules 1994. Mr Choudry was represented by Mr Broatch of counsel who objected to this course, but his objection was dismissed. No attempt was made to adduce evidence to rebut the judgment of the Court of Appeal. On the basis of that judgment the Solicitors Disciplinary Tribunal found the case proved and ordered that Mr Choudry should be struck off.[16]On appeal to the Administrative Court against that decision, it was argued that the Court of Appeal judgment should not have been admitted by the Solicitors Disciplinary Tribunal. Two points were taken:(i) that the judgment of the Court of Appeal was not a decision "relating to" Mr Choudry on the natural meaning of those words in regulation 30, which only applied where a solicitor was a party;(ii) It was contrary to Article 6 of the International Convention on Human Rights to interpret the regulation as applying to anything other than a judgment in proceedings to which a solicitor had been a party. The Administrative Court did not accept either of these submissions.[17]As to the first submission, Kennedy LJ, in the course of the leading judgment, said:
"Like the Tribunal, I see no reason why the words 'relate to' in Rule 30 should be so narrowly construed. As Mr Hopper QC, for the respondent, submits in paragraph 31 of his skeleton argument, such a narrow construction would render the rule much less valuable. It is clearly intended to embrace the situation where a judge who has heard a case and heard a solicitor give evidence and delivered a judgment analysing the issues refers the matter to the Law Society."
[18]It is Mr Choudry's case that this passage was simply wrong. I do not consider that he would have any realistic prospect of persuading this court that that was so.[19]The Regulation speaks of a decision relating to the relevant party. It does not say a decision in proceedings "in which the relevant party was involved as a party". I can see no reason to restrict it in that way. On the contrary, the reference in rule 30(2) to "the conviction, finding , sentence or judgment", naturally suggests that the regulation applies to a finding against a solicitor made in proceedings in which the solicitor is involved other than as a party. It is in just such a situation that findings in relation to the manner in which proceedings have been conducted by a solicitor are liable to be made. It seems to me sensible that such findings should be admissible in disciplinary proceedings as prima facie proof of guilt. That is always provided that Article 6 is not infringed.[20]Quite apart from my view of the construction of the Regulation, it does seem to me that in this case Mr Choudry, was effectively a party to the proceedings that gave rise to the relevant decision. Technically his status before Nelson J was somewhat unclear, but it is plain that he, represented as he was by leading counsel, was playing a full part in contesting the allegation that the bill of costs was bogus.[21]The judgment that the Solicitors Disciplinary Tribunal relied upon was the judgment of the Court of Appeal. By the time of the hearing in the Court of Appeal, Mr Choudry was not merely effectively a party, he had been made a party. It was argued that the relevant hearing was the one against which the appeal was being brought. Technically that does not seem to me to be correct, and, as I have said, Mr Choudry was in effect a party to the hearing before Nelson J.[22]These considerations are plainly relevant to the second limb of the proposed appeal, namely, that it was contrary to Article 6 that this procedure should be adopted. In a situation where Mr Choudry played a full part at the hearing that gave rise to the judgment, in effect as a party, I cannot see that it is reasonably arguable that there was any breach of Article 6. It would have been open to him before the Solicitors Disciplinary Tribunal to adduce evidence in an attempt to discharge the burden upon him of showing that the judgment was not correct. He could have sought leave to cross-examine witnesses before the Solicitors Disciplinary Tribunal, but he took none of these steps.[23]Having played a full part in the hearing before Nelson J and the Court of Appeal, he was in some difficulty in seeking to contest the judgment, but it does not seem to me that that position was in any way in conflict with Article 6 of the Convention.[24]For all these reasons, I can see no reasonable prospect of an appeal succeeding. I refuse the application.

Order

Permission to appeal refused.

Cited in 1 later judgment