Phillips & Anor v Symes & Anor [2003] EWCA Civ 1769

Case No A3/2003/2068

Case No A3/2003/1259

[2003] EWCA Civ 1769

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

MR JUSTICE PETER SMITH

Venue Royal Courts of Justice

Date Friday 5 th December 2003

Strand,

London, WC2A 2LL

Before

LORD JUSTICE WALLER

LADY JUSTICE HALE

LORD JUSTICE CARNWATH

Between

JONATHAN GUY ANTHONY PHILLIPSClaimants/

ROBERT ANDREW HARLAND (suing as administrators of the estate of Christo Michailidis)Respondents

ROBIN JAMES SYMESDefendants/

ROBIN SYMES LIMITEDApplicants

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Mr Alan Steinfeld QC and Mr John Stephens (instructed by Messrs Lane & Partners) for Claimants/Applicants

Mr Stephen Schaw-Miller (instructed by Messrs Bracher Rawlins) for Bracher Rawlins on the preliminary applications only for the Defendants/Applicants

Judgment

[1]This is the judgment of the court to which we have all contributed.

Introduction

[2]This judgment is concerned with three applications for permission to appeal made by Mr Robin Symes which following directions from Carnwath LJ made on 13th October 2003, came before the court on 3rd November 2003. Carnwath LJ in the directions he gave distinguished between the three. The first was an application for permission to appeal a judgment of Peter Smith J dated 2nd May 2003 under which he ruled as to the ownership of a statue in the context of proceedings for contempt then being pursued against Mr Symes. Carnwath LJ directed that the application should be heard inter partes, and if permission were granted the appeal would be heard at some date thereafter. In relation to the second and third, which were applications to appeal rulings by Peter Smith J made on 29th August 2003, he directed that if permission to appeal were given the appeal should follow. Those rulings were, first, that Mr Symes should attend for cross examination on 3rd November 2003 on various matters, the detail of which will be apparent hereafter. The second ruling was that the judge should not recuse himself from presiding over that cross examination. The urgency with which these latter two applications had to be dealt with was the reason for that direction. Special arrangements were made to list the applications with the full support of those representing Mr Symes and those representing the respondents, as soon as possible leading to that listing on 3rd November 2003 for a two day hearing. Substantial skeletons were lodged by both sides as a matter of urgency, and the applications were made ready for hearing.

[3]On Thursday 30th October 2003, we heard an application made by Mr Burnett QC instructed by Mr Slade on behalf of Mr Symes, to adjourn the applications on the grounds that Mr Symes’ mental condition was such as to make the taking of instructions from him impossible. The respondents did not accept the state of Mr Symes’ mental condition and resisted the adjournment. They pointed out that no suggestion of any such difficulty had been mentioned as at 13th October 2003, and in any event submitted that, so far as the applications and any appeals were concerned, proper instructions had already been given. We refused the adjournment.

[4]The application was however renewed at the commencement of the hearings on Monday 3rd November, coupled with an application by Mr Slade (the solicitor acting for Mr Symes) to come off the record if an adjournment was refused. This application was made by Mr Schaw-Miller instructed by Mr Slade, but with instructions limited to making the application to adjourn, or if necessary the application for Mr Slade to come off the record. The basis of Mr Slade’s anxieties were, first, that he could not obtain instructions, but in addition (as he made clear by a statement put in by him) he had become aware of information that necessitated the review of an affidavit sworn by Mr Symes in relation to which he could not obtain proper instructions. Again the condition of Mr Symes was disputed by the respondents, and they resisted an adjournment.

[5]Obviously if there were ever to be a question of Mr Symes being cross examined, and indeed if there were a question as to whether he could give instructions in areas where he had not already done so, his mental condition would have to be determined, or arrangements made for a litigation friend. But equally the applications were urgent, and had been fully prepared, and it was difficult to see how Mr Symes’ mental condition affected the ability of the court to deal with those applications. We suggested that Mr Slade’s anxieties in relation to his desire to review certain aspects of the evidence did not preclude the court continuing to deal with the applications. He had made clear his reservations as to the contents of the affidavit. That affidavit was not being placed before the Court of Appeal, as one on which this court was being asked to rely in the context of dealing with the correctness or otherwise of the judge’s rulings. We further repeated our views that instructions had already been given for the appeal to proceed, and it was not possible to see having regard to the extensive skeletons already filed, how further instructions were needed.

[6]It would, however, have been unsatisfactory for the applications simply to be dismissed without consideration of the arguments raised in the skeletons. Mr Schaw-Miller was not instructed to argue the applications, but very extensive written submissions prepared by Mr Harold Burnett QC and Mr Simon Hattan had been placed before the court. Mr Steinfeld QC for the respondents very properly conceded that, if the applications continued and if permission to appeal were granted in relation to the two applications where appeals were to follow, the right course was for the court to consider the merits by reference to the written submissions. He also accepted, when we suggested that even handedness demanded it, that it was appropriate for the court not to hear further oral submissions by either side, and simply rule by reference to the written submissions filed.

[7]In the event Mr Slade did not pursue his application to come off the record, and he too accepted that the court should resolve the matter by reference to the written submissions filed by the parties.

[8]This thus is a judgment given after reading the written submissions and the material to which they refer.

History of the Litigation

[9]By their claim form issued on 23rd February 2001 the respondents sought inter alia a declaration that the late Christo Michailidis (“Christo”) and the appellant had been partners in a business dealing in antiquities, and all necessary and proper accounts and enquiries.

[10]On 27th February 2001 Lloyd J appointed a receiver over the partnership’s assets and granted injunctive relief in the usual form. On 7th March 2001 (and substantially by consent) Hart J established an interlocutory regime which has, subject to modifications in detail, been in force ever since. Amongst other things that interlocutory regime restricted sales of antiquities (including sales by Robin Symes Limited (“RSL”), a company which was and is an asset of the partnership, unless made for full consideration and at arm’s length, and required that prior to any proposed sale being effected a notice of sale be given.

[11]Up until September 2002 the defence of Mr Symes was that there was no partnership and that Christo was a mere employee of RSL and no more. On 25th September 2002 Mr Symes served a draft amended defence in which the partnership was accepted. It was however asserted that there was a special term in the partnership which gave Mr Symes the right to succeed to all its assets by survivorship. On 21st January 2003 a date was fixed for 3rd June 2003 for trial of the issue whether that special term was indeed a term of the partnership.

The Issue on the First Appeal and How it Arose

[12]The issue tried by the judge, and in relation to which he gave judgment on 22nd May 2003, related to the question whether a certain granodiorite statue of an Egyptian god (“the statue”) was owned prior to its sale wholly by RSL, or was co-owned by RSL, Mr Domercq (Mr D) and Mrs Nussberger (Mrs N).

[13]On 5th April 2002 Mr Symes signed a notice of sale in the prescribed form in respect of the sale of the statue. The notice was signed by Mr Symes but did not claim that there were any co-owners. The intended purchaser was a company called Philos Partners Inc (“Philos”) and the sale price $1.6m.

[14]The respondents had not agreed to the proposed sale and thus before the sale was made an application had been made by Mr Symes to Hart J. Hart J on 27th March 2002 authorised the sale in the terms set out above, on the basis of evidence given by Mr Symes on his own behalf and by his then solicitor. This evidence was(1) that the statue belonged to RSL (supported by RSL’s accounts and stock records and by documents showing RSL’s acquisition of the object from Mr D for $3.25m);

(2) that $1.6m was a fair price because it was the best price that could be obtained; and

(3) that the sale was to Philos (inferentially an arm’s length purchaser).

[15]Shortly after 27th March the statute was transported to Switzerland and the sale was completed and RSL received $1.6m. The respondents remained concerned about the transaction. They made a further application to the court, which led to Mr Symes confirming in a further affidavit (his eleventh affidavit sworn on 27th September 2002) that the evidence that had been given by him and on his behalf in order to procure permission to make this sale was true.

[16]On 3rd February 2003 however Mr Symes swore his fourteenth affidavit in which he admitted and asserted –(1) that the true buyer of the statue was not Philos but one Sheikh Al-Thani of Qatar; and

(2) that the true sale price was not $1.6m but $4.5m; but

(3) none of that mattered because RSL had only in fact been selling a one third interest in the statue (for $1.5m) and had received a top-up payment of $100,000 because it had incurred certain expenses including the cost of some restoration work.

[17]Mr Symes’ position was that his evidence in March 2002 and in September 2002 amounted to no more than an infelicity and lack of clarity of expression for which he apologised.

[18]The respondents alleged that this change of heart came about because, during a mediation which had been held in Paris in January 2003, Mr Symes had appreciated that the respondents had by then discovered the true buyer of the statue.

[19]The respondents’ solicitors wrote a long letter summarising their concerns dated 12th February 2003. On the respondents’ application for the trial of what became the issue as to the true ownership of the statue the matter came before Peter Smith J on 13th March 2003. On that date he directed that the respondents should also make an application for Mr Symes’ committal for contempt arising out of his admittedly false evidence. The judge ruled as a necessary part of the committal process that there should be a trial of the issue as to whether RSL only had a one third interest in the statue. The trial of that issue was relevant to the seriousness or otherwise of the alleged contempt.

[20]On 13th March Peter Smith J also gave directions for the joinder of Mr D and Mrs N, they being the individuals who according to Mr Symes, each had a one third interest in the statue. One criticism of the judge relates to conduct during argument as to whether these two persons should be joined, and is a matter to which we will return when dealing with the recusal.

[21]On 4th April 2003, as a result of Mr Symes’ failure to comply with an order for disclosure previously made by the judge, Peter Smith J ordered that Mr Symes’ amended defence be struck out. He granted the claimants’ declaration that the business conducted by Mr Symes and Christo between 1970 and the date of Christo’s death had been a partnership, and directed that the usual accounts and enquiries be taken and made (although no directions have as yet been given as to how this process is to be undertaken and no accounts have yet been formulated).

[22]The committal application and the trial of the issue as to the ownership of the statue came on for hearing on 30th April 2003. It seems that leading counsel for Mr Symes admitted early in that hearing that Mr Symes was in contempt of court by virtue of his evidence in March 2002. There is criticism of the way in which the judge conducted the hearing, which is again a matter to which we will have to return in relation to recusal. The judge gave judgment on 22nd May 2003, and found that the statue was one hundred per cent owned by RSL. In the light of Mr Symes’ admission that he was in contempt the judge imposed a sentence of imprisonment of 12 months, but he suspended that sentence on the basis of certain undertakings given by Mr Symes which were attached to that order. There was no appeal against the finding of contempt nor the sentence imposed. The first application before us simply related to the decision of the judge that the statue was one hundred per cent owned by RSL.

The First Application – The Issue of Ownership of the Statue

[23]It is convenient at this juncture to deal with the first appeal. As already emphasised that is concerned simply with the judge’s ruling that the statue was one hundred per cent owned by RSL. The issue was tried in the context of the committal application and with a view to assessing the seriousness of the contempt. There is no appeal against the finding of contempt nor the sentence imposed. Therefore so far as relevance to seriousness is concerned, there is no longer any issue. It follows that so far as the merits of that issue are concerned the only persons with any interest in disturbing that decision are Mr D and Mrs N. The first point taken by the respondents is accordingly that Mr Symes has no interest which provides him with a basis on which he should be entitled to appeal.

[24]Appreciating the force of the point taken by the respondents, those representing Mr Symes put in a further supplementary skeleton argument dealing with this point specifically. That skeleton argument is dated 14th August 2003 and is at tab 5 of the master bundle. It suggests that there are two reasons why Mr Symes has standing to pursue the appeal. First, it is suggested that because of certain findings by the judge of fraud or fraudulent breach of trust relative to RSL or indeed Christo’s estate Mr Symes despite his bankruptcy will be at risk of being held in fraudulent breach of trust. The findings, it is suggested, would be findings which were capable of establishing a debt owed by Mr Symes incurred in respect of a fraudulent breach of trust, and from which he would not be released on his discharge from bankruptcy because of the provisions of section 281(3) of the Insolvency Act 1986.

[25]The second reason for his interest is suggested to be the liability for costs imposed by the judge by his order made on 22nd May 2003.

[26]The respondents suggest that there are answers to both of the above points. First, so far as fraudulent breach of trust is concerned, it now appears that Sheikh Al-Thani has paid into an escrow account the sum of $2.9m, which was the sum remaining outstanding in respect of the purchase of the statue. It was only that outstanding liability which could have given rise to a debt for fraudulent breach of trust. Now that that sum is in an escrow account, there is not even a theoretical possibility of there being a claim against the appellant in respect of this money. That is an answer to the first suggested interest.

[27]So far as costs were concerned, the respondents submit the hearing before the judge was concerned with Mr Symes’ admitted contempt. It arose out of the admitted untruthful evidence that he had given on previous occasions. They submit that in any event an order for costs would have been made against Mr Symes, or if not the difference in any order would not make it a proper case to grant permission to appeal. In our view that point too is sound, and is an answer to Mr Symes’ interest so far as costs are concerned.

[28]In the circumstances in our view Mr Symes has no interest in pursuing this appeal. Thus permission to appeal should be refused so far as the first application is concerned.

Background to Cross Examination and Recusal Appeals

[29]As already indicated, Mr Symes’ defence was struck out and judgment entered against him in April. In addition by order of Patten J dated 28th April 2003, an injunction was granted restraining Mr Symes from leaving the jurisdiction pending the application for his committal for contempt to be heard in May, and he was ordered to deliver up his passport to the claimants’ solicitors. Following that committal hearing, the order was continued by Peter Smith J’s order of 22nd May 2003. By that order (as already indicated above) Mr Symes had been found guilty of contempt and a sentence of twelve months imprisonment imposed, but the sentence was suspended “provided that [Mr Symes] complies with the undertakings he has given to this court and which are set out in the Schedule hereto until discharge by order of the court.” For convenience, a copy of that Schedule is annexed to this judgment. Of particular importance to what followed were undertakings 6, 7 and 8. By virtue of undertakings 6 and 7 the claimants hoped to obtain by 20th June 2003

(a) details of the documents identifying all antiquities comprised within what was termed the Egyptian Collection, and

(b) the location of those antiquities, and, in any case where there had been a sale, details of that sale. By virtue of undertaking 8, the claimants hoped to obtain the “true” source of certain funds (namely $9,860,278.79), which Mr Symes had already said had come to him as a gift from a lady Hersa Hamad Aisa Fdala.

[30]By the same order it was further ordered that “1. The 1st Defendant do by 4 pm on 5 June 2003 swear an Affidavit setting out with full details to the best of his knowledge information and belief (and, subject to matters of privilege, providing all relevant documentation) what funds he has received from third parties during the course of this action, the amount of such funds, the date or dates on which such funds were received, the terms on which they were paid, what has become of the said funds and in each case the identity of the third party. 2. The 1st Defendant do by 4 pm on 20 June 2003 swear an Affidavit:(a) identifying, to the best of his knowledge information and belief, each and every company used for the purposes of the partnership business carried on between himself and Christo Michailidis (whether as trading vehicles or otherwise) and where each such company is registered, giving the relevant company number if known, and

(b) giving full particulars of the person or persons responsible for the management of such company. 3. The 1st Defendant do by 4 pm on 31 July 2003 procure the delivery to the Claimants’ solicitors of copies of all the records and other documents of each such company referred to in paragraph 2 above.” (a) identifying, to the best of his knowledge information and belief, each and every company used for the purposes of the partnership business carried on between himself and Christo Michailidis (whether as trading vehicles or otherwise) and where each such company is registered, giving the relevant company number if known, and (b) giving full particulars of the person or persons responsible for the management of such company.

Compliance Affidavits

[31]By his 20th Affidavit dated 28th May 2003, Mr Symes said that he was swearing the same so as to comply with undertakings 3,8, 10 and 12. So far as undertaking 8 was concerned, he simply repeated the information which he had supplied previously identifying as “the true source of the funds, Hersa Hamad Aisa Fdala” as he had already identified in his 13th Affidavit made on 14th December 2002.

[32]By his 21st Affidavit dated 5th June 2003, he stated he was making the same to comply with undertaking 9 and to explain the steps he was taking to comply with paragraph 1 of the order quoted in paragraph 29 above.

[33]By his 22nd Affidavit dated 22nd June 2003, he provided information to comply with undertakings 1, 5, 6 and 7, and paragraphs 1 and 2 of the order. There was in the documentation supplied with this affidavit no reference to a statue of the Pharaoh Akhenaten (the Akhenaten statue).

[34]The respondents issued an application dated 17th June 2003 but amended on 25th June 2003 by which they sought an order that Mr Symes attend for cross examination on his 20th, 21st and 22nd affidavits, and orders as to whether Mr Symes had complied with paragraphs 1, 2 (a) and (b) of the order of 22nd May (as quoted above), and undertakings contained in 1, 5, 8, 9, and 10.

[35]In response to that application Mr Symes swore a further affidavit dated 24th June 2003 updating his compliance with undertakings 2, 6, 7, 9, and 10, and paragraph 2 of the Order. So far as undertakings 6 and 7 were concerned, still there was no reference to the Akhenatan statue.

[36]The matter came before Peter Smith J on or about 2nd July. At this time the claimants informed the court that provisionally they had formed the view from evidence obtained from elsewhere that Mr Symes was in contempt of earlier orders. Peter Smith J directed that the claimants should amend their application setting out all the claimants’ allegations, and he directed the service of points of claim giving notice to Mr Symes of all the allegations made. A date was fixed for a hearing on 28th and 29th August 2003.

[37]On 11th August 2003 the claimants did re-amend their application. It extended the application even beyond that intimated to Peter Smith J at the directions hearing. It was supported by a number of affidavits, an extensive 46 page skeleton argument dated 11th August 2003, and points of claim. The points of claim (tab 14 of Bundle A) set out the allegations of(1) Mr Symes’ alleged breaches of the order of 22nd May 2003;

(2) the failures to comply with the undertakings given to and accepted by the court on 22nd May 2003; [the failures particularised did not relate to all undertakings, simply undertakings 1, 6, 7, 8, 10 and 11] and

(3) Mr Symes’ further contempts of court in respect of the Order of Lloyd J of 27th February 2001 and of undertakings given to Hart J on 18th July 2001. In some instances failures to comply with the undertakings covered areas also covered by alleged contempts. For example, in relation to the Akhenaten statue, detailed particulars of breaches of undertaking 6 are provided and the same facts were relied on as supporting the alleged contempt of “Deliberate concealment of objects – the Akhenaten…”(see paragraph 52).

[38]As we have said the application was also supported by further affidavits. A flavour of the points raised by those affidavits will suffice. (1)There was an affidavit dated 11th August 2003 from Sophie Jane Eyre (a solicitor for the claimants) by which she asserted, with grounds, that certain documents the subject of the undertakings, and the paragraphs of the order had not been disclosed. She gave examples of questions that she would like to address to Mr Symes on the documents disclosed. (2) A further affidavit from Sophie Eyre of the same date, suggested, from a sophisticated computerised analysis of documentation supplied by Mr Symes, that there might well be certain items which had been sold but which had not been accounted for, and in relation to which explanations from Mr Symes were called for. (3) An affidavit from Mr de Walden also dated 11th August 2003 addressed perhaps most significantly the conclusions to be drawn from documents recently obtained by virtue of proceedings in New York from the estate of the late Leon Levy. He challenged Mr Symes’ repetition of the source of the $9,860,278.79 as being in compliance with undertaking 8 to reveal the “true” source of the funds; he dealt with the failure to disclose the existence of the Akhenatan statue and the possibility that that statue had been offered for sale to Sheikh Al-Thani for US$8 million; and he dealt with other matters relating to alleged failures to comply with the undertakings. (4) An affidavit from Anna Bennett explained, in relation to the Egyptian Catalogue and Collection, how documents supplied by Mr Symes and other records (together with what Anna Bennett had been able to inspect) were difficult to reconcile, and how it would be helpful if Mr Symes could in the first instance rationalise and reconcile all the material he had provided. She further made clear that she had not seen the Akhenatan statue. (5) A witness statement from Mr Gavrilis a shipping agent supported allegations relating to movement of goods said to be in breach of the initial injunction of Lloyd J. (6) A witness statement of Ms Papadimitriou related to the existence or alleged non-existence of Hersa Hamad Aisa Fdala.

[39]The application was no longer limited to cross examination of Mr Symes on certain of his undertakings and whether he had complied with the same. 1. It sought now to cross examine Mr Symes “generally on his evidence herein in relation to the matters raised in the claimants’ points of claim and skeleton argument dated 11th August 2003”. 2. It sought a ruling as to whether the purported compliance by Mr Symes with paragraphs 1, 2, and 3 of the order of 22nd May, and the undertakings in 1, 2, 6, 7, 8, 9, 10 and 11 had been complied with, and if non-compliance was found “whether Mr Symes should be held in contempt of court in respect of such non-compliance and whether suspension on (sic of) the existing committal order should be lifted”. 3. It sought leave to bring a further committal application for contempts of court particularised in the points of claim delivered with the application. 4. It sought further general disclosure in accordance with a draft order [which we should say we have not located with the papers].

[40]The skeleton argument made clear that what the claimants were now seeking was an order for the cross examination of Mr Symes on his evidence generally in this case “provided that such cross examination reasonably relates to matters canvassed in this skeleton argument”. The skeleton is a comprehensive document dealing with the full history of how the claimants allege Mr Symes has failed to disclose documents, hidden assets and breached orders of the court. It makes quite clear that what was sought was a right to cross examine, not just in relation to breaches of the undertakings, but also in relation to the conduct which formed the basis of the contempt applications, and generally on the basis that:

“the Claimants submit that consideration of the detailed evidence as explained in this Skeleton, and in particular of the documents obtained from 3rd parties to which reference will be made, leads to the irresistible conclusion that it is only after full cross examination of Mr Symes that the Court might be able to get to the truth of precisely what assets the partnership held – and where they are now.”

[41]The claimants further made clear that they would resist any return of Mr Symes’ passport until “Mr Symes can satisfy the court that he has made proper disclosure – of assets and documents ..” (page 161), and that the court should not be so satisfied “until this has been tested by the cross examination of Mr Symes and his veracity has been evaluated by the court.” Paragraphs 14 to 64 cover failures to comply with the undertakings and paragraphs of the order of 22nd May 2003; and matters on which the claimants would like to put questions to Mr Symes on documents disclosed by him. Paragraph 65 to 92 cover the fresh contempt application. Paragraphs 93 to 100 cover discrete matters of disclosure.

[42]The skeleton argument with the support of the affidavits undoubtedly makes a very powerful case of a wholesale effort by Mr Symes to hide assets, of numerous occasions when Mr Symes has been untruthful in affidavits placed before the court, and of occasions when he has acted in breach of orders of the court. In particular it makes a very powerful case that Mr Symes has failed by his compliance affidavits in relation to undertakings 1, 6, 7, 8,10 and 11 to provide information in accordance with the same.

[43]Mr Symes responded to the amended application and the above material, by serving a further affidavit dated 22nd August 2003 (his 25th Affidavit). He dealt with various of the Undertakings and paragraphs in the order of 22nd May, including undertakings 6 and 7 and undertaking 8. It is in relation to what Mr Symes has sworn in paragraphs 7 to 10 of this affidavit (which relate to the Akhenatan statue) that Mr Slade has said, by virtue of a statement put before us, that the same needs review before either he or counsel could make further submissions. The 25th affidavit also makes a plea for the return of Mr Symes’ passport.

[44]That 25th Affidavit was no doubt intended to support an application issued on behalf of Mr Symes on 22nd August 2003 for an order that he had complied with the undertakings given on 22nd May 2003, and for an order discharging his committal to prison and for a return of his passport. It further sought an order that consideration of those parts of the claimants’ re-amended application, which went beyond consideration of whether the undertakings given on 22nd May had been complied with, be adjourned.

[45]The matter came on initially for directions on 26th August. It seems that Mr Slade acting for Mr Symes was at this stage hoping to pursue the application that the hearing on 28th/29th August should be confined to consideration of the question whether Mr Symes had complied with the undertakings. His submission was that any other applications should be pursued separately. By his skeleton argument for the hearings of 28th/29th August, Mr Slade suggested it was undesirable for all matters raised by the application as amended to be considered together (although further consideration would be given to that question); he suggested that the court should consider by reference to the criminal standard of proof whether any breaches of the undertakings had been established, and submitted that on that basis no breaches had been established. He pointed out that breaches of paragraphs of the order were not in the same position as the undertakings in that suspension of the sentence of 12 months was not conditional on compliance with those paragraphs. He gave notice of his intention no longer to pursue Mr Symes’ application that he had satisfied the undertakings “on the grounds that on balance it was probably unnecessary to trouble the court to make a declaration” [see paragraph 60 page 225B Bundle A]. He sought the adjournment of all other aspects of the claimants’ application.

[46]On the morning of the 28th August Mr Steinfeld for the claimants reported the following to the judge: “Mr Slade, whom I have spoken to this morning, has indicated, contrary to apparently the view which was taken before your Lordship on Tuesday, that if there is to be cross examination of Mr Symes he now, I think, accepts that it would be preferable for that to go over to another date and for there to be cross-examination in relation to all matters. He says he has not had an opportunity to consider the evidence which came in late yesterday and so far as the other matters are concerned he makes the point that if an order should be made for cross-examination of his client he might wish to consider appealing that order.” [see Transcript day1 28th August 2003 internal page 13 - page 282 bundle A.]

[47]We suspect that what was being recorded was Mr Slade’s acceptance that, if there was to be cross examination, it would be better if the undertakings aspect and the fresh contempt applications were dealt with at the same time because of the overlap. Certainly so far as the argument went on 28th August, from the transcript it seems clear that Mr Slade’s position was(1) that the first question was whether there had been a failure to comply with the undertakings, and unless the claimants established a breach there should be no order for cross examination; [Transcript Day 1 114];

(2) that to “blend in” a request for cross examination in aid of accounts and inquiries would be inappropriate and wrong [day 1 128].

[48]In any event, argument on the 28th August was directed to the question as to whether any order for cross examination should be made at all; and, if so, what the form of the order should be. It also dealt with leave to move for committal in relation to the further contempts alleged.

[49]The judge ruled by a judgment delivered on the morning of 29th August that there should be an order for cross examination. The order took the following form:

“1. Save as set out below, the issues raised by the Claimants’ Application and the 1st Defendant’s application be stood over to a date to be fixed with a time estimate of 10 days if heard by Mr Justice Peter Smith, and a time estimate of 15 days if heard by another judge. Cross-examination 2. The maker of any witness statement or affidavit which it is intended to be relied upon at the substantive hearing of the Claimants’ Application and the 1st Defendant’s Application do attend for cross-examination thereon (for the avoidance of doubt such including all or any affidavits sworn by the 1st Defendant intended to be relied upon as compliance by him with the Order of 22 May 2003 and his undertakings contained therein), unless the other party gives notice in writing not less than 7 clear business days before the substantive hearing that such person is not required so to attend. 3. If any such person does not attend for cross-examination, the relevant witness statement or affidavit may not be relied upon, unless otherwise ordered by the court. 4. Permission to the parties to apply in respect of the necessity of any such person attending for cross-examination. 5. The 1st Defendant’s application for permission to appeal the orders at paragraphs 2 and 3 above be refused and the 1st Defendant’s application for a stay pending any appeal be similarly refused. 6. Time for the 1st Defendant to file an appellant’s notice seeking the permission of the Court of Appeal be extended until Friday 19 September 2003. Contempt application 7. So far as necessary the Claimants do have permission pursuant to CPR 32.14 to make application for the 1st Defendant’s committal to prison (or such other relief as may be just) as more particularly set out in the Re-Amended Application and Points of Claim dated 11 August 2003. 8. The court to dispense with personal service of the Re-Amended Application and evidence in support thereof. All evidence relating to the Re-Amended Application served on Bracher Rawlins shall be deemed to be good service on the 1st Defendant.”

Cross-examination

Contempt application

The judge in his judgment made the following points and expressed the following views:

[50]

(1) He took the view that the skeleton argument forewarned Mr Symes of the areas in which he could be cross examined (see paragraph 4).

(2) He thought he had a general discretion as to whether to order cross examination and its ambit (see paragraph 8 and his reliance on CPR 32.7). Reliance on that rule also however led him to the conclusion that if Mr Symes did not appear for cross examination he was free to treat the compliance affidavits as if they had not been delivered (see paragraph 9).

(3) He said that the evidence put in by the claimants raised “a strong prima facie case that Mr Symes did not comply with his undertakings”, and that the compliance affidavits and Mr Symes’ answers to the claimants’ evidence “raise serious questions which can only realistically be resolved by cross examination”.

(4) He said that it was important that judgment had been entered and therefore Mr Symes was under a duty as a partner to answer questions as to assets of the partnership (paragraph 15); and in paragraph 16, 17, 18 and 19 he said: “Post judgment, the matter is one of execution. It is analogous (and I stress the word analogous for the benefit of Mr Slade's note) to an order for oral examination of a judgment debtor. There is no question of orders for examination of judgment debtors being refused because that might incriminate them. The matter is also analogous to a situation where there is a proprietary claim. In the case of freezing orders in respect of the proprietary claim, the principle of non cross-examination is not applicable because the claimant there is seeking to know the whereabouts of assets that belong to the claimant. Those are questions which they are entitled to pursue. In the present case, Mr Symes is bankrupt. He has no interest in these assets unless there is a surplus of assets after his bankruptcy. The claimants are therefore entitled to pursue what are proper post judgment proprietary claims. In that context, I observe that irrespective of the claims for proprietary entitlement to the asset, Mr Symes has a substantial costs liability to the claimants which is entirely unsatisfied in excess of £1m on an interim basis, and potentially several million Pounds on a full assessment basis. Those monies will be payable out of any partnership assets in any event, and represent a substantial liability which justifies the claimants seeking the assets. The claimants, despite extensive efforts have recovered only limited assets. Further, the circumstances where assets have been revealed by Mr Symes actually posed more questions themselves. In this context I refer to the articles deposited with Mr Slade’s firm, and the articles found in the possession of Biri Faye. None of these had been revealed by Mr Symes before their presence was revealed in the last two months or so without explanation. Throughout this action Mr Symes has been evasive and has repeatedly failed to comply with orders that have been made against him. Looking at all of those matters, the balance of justice plainly favours an order for cross-examination. This is supported by the extract from Gee on Mareva Injunctions & Anton Piller “relief” at page 354, where the learned author indicates that the cases where the courts exercised a discretion not to cross-examine, were generally limited to cases pre-judgment and had no application to post-judgment or proprietary claims. It follows therefore that the claimants ought to be entitled to cross-examine Mr Symes and the other deponents in order to further their rights to seek to recover property that belonged to the deceased.”

(5) His view was that the application was not a contempt application requiring proof to the criminal standard “If all that is being sought to establish is breach of the court order, that is capable of establishment to the civil standard…”(paragraph 21) However, he added: “Whoever makes the application has the burden of proving it… It does not follow from a failure to prove by (the claimants) that Mr Symes wins on an establishment that he has complied. Thus Mr Symes cannot (in my mind) simply sit back and require the case to be proved if he wishes to be released from the suspension, he must lead a positive case…” (paragraph 22).

(6) He did not think in this case Mr Symes had the right to submit no case to answer. The first reason was that he thought that submission would have no reasonable prospect of success. But he in any event thought that it would not be right to allow a submission of no case, and then an adjournment for there to be an appeal with all the delays that would entail. He said: “It would not be right to allow him to produce the affidavits of compliance, and to deprive the claimants of a fair opportunity to present their case by submitting that evidence to the test of cross-examination. This is not an injustice because the purpose of the exercise as regards the establishment of the breach, as I have indicated in this judgment, is just that. It is not for the purposes of establishing that he is in contempt, and I do not believe that the claimants amended application notice in paragraph 3 properly read can have any other conclusion drawn from it. Of course, if it is established that Mr Symes is in breach a number of consequences might follow. One might be that I make no order beyond establishing that he is in breach making no doubt an order for costs and requiring his passport to remain within the jurisdiction so long as he is in breach. That will then give him an opportunity to re-visit the question of non-compliance. The other possibility is that I would conclude that he is in breach, and that therefore it would be appropriate for me to lift the suspension of the sentence of imprisonment. That is not a sentencing for contempt, that is a lifting of the condition as a result of his failure to comply with the pre-existing contempt. The third possibility would be to deliver a judgment establishing that Mr Symes is in breach and then adjourning further consideration to allow Mr Symes to re-consider his position. The fourth possibility is that I accept that he has complied, I discharge the condition and release the passports. All of those as between the parties are available options and in fairness to both parties, those options can only be properly considered by me as the judge after both sides have had a full opportunity to present their case, and that involves both cases deploying their evidence in full and cross-examining the other parties. That is why in the reality of this case, the submission of no case to answer is not a realistic prospect.” (paragraphs 23-5)

(7) He dealt with Mr Slade’s submission that Mr Symes may be subject to questions and answers that might be used to prove contempt. He said: “The matters are fully resolved, in my view by the judgment of Mr Justice Rimer in Cobra Golfing – v – Ratta (1998) CH 109. Mr Slade referred me to a decision of Mrs Justice Arden (as she then was) in Memory Corporation – v – Sidhu (2000) CH 645. I do not think that that case has any impact on the substantive decisions made by Mr Justice Rimer. If they did and there was a conflict between the two authorities, I would prefer the decision of Mr Justice Rimer to that of Mrs Justice Arden (as she then was). It seems to me that all the arguments have been deployed fully by Mr Justice Rimer, and he has dealt with them in a judgment which I can only describe as impeccable. The procedure cannot be used as a stalking horse for proving contempt. That is what Cobra established, and Mr Steinfeld QC who appears for the claimants acknowledged that. Second, Mr Symes cannot decline on incrimination grounds to answer questions which involve determining whether he has complied with orders in the existing proceedings. That is an exception which self evidently remains [see Cobra pages 157 to 159]. If such an exception was available, it would make enforcement of any orders of the court impossible because it would be impossible for any party to obtain answer because somebody would simply decline to answer on the grounds that it might incriminate them. In committal proceedings, Mr Symes is entitled to decline to answer questions that might incriminate him – see the Comet case

(1971) 2 QB 67

. However, that case does not go on to conclude, and there is no case so far as I am aware which addresses the consequence that a judge trying a civil contempt can draw from a person who declines to answer. I see no reason why it is not possible for a judge to conclude in a question of civil contempt that the person who declines to answer is doing so because he knows he is guilty. That is an argument for submission at a later stage.”

(8) He then finally dealt with the limits of the cross examination. He made clear that if anyone did not attend including Mr Symes the affidavits so far served would not be able to be relied on. Then his ruling from Paragraph 30 appears to be that there was no limit within the ambit of the skeleton argument but that it was unlikely that he would allow the claimants to go beyond that. Consideration of the Judge’s Order Preliminary Comments

Consideration of the Judge’s Order

[51]Several points strike us immediately: i) The perfectly proper desire to trace and preserve the partnership assets has led to a number of different techniques being used at once, in such a way that it is difficult to work out the proper and fair procedures for determining the various issues before the court It is necessary to draw careful distinctions between the four issues raised in the applications before the judge:a. Is Mr Symes in breach of the undertakings given on 22 May? Initially both parties sought a ruling on this, the claimants with a view to lifting the suspension of the committal and Mr Symes with a view to lifting the committal (but it appears that Mr Symes has withdrawn his application).

b. Is Mr Symes in breach of the order made on 22 May? The claimants have alleged that he is and want a ruling with a view to a further committal on that.

c. Is Mr Symes in breach of other orders, or otherwise guilty of contempt of court, as particularised in the points of claim?

d. Should Mr Symes be cross-examined generally on his evidence by reference to matters raised in the points of claim and skeleton argument of 11 August 2003? ii. Where someone has purported to comply with either undertakings or orders to make disclosure by affidavit, we doubt whether it is right to place the deponent in the position that, unless he is prepared to be cross examined on his affidavits, they count for nothing at all. On the other hand, without cross examination, the court is entitled to attach little weight to them: see Comet Products UK Ltd v Hawkex Plastics Ltd

[1971] 2 QB 67

, CA. iii. Where a party comes to court alleging that those affidavits do not comply with an undertaking or an order, the burden of proving this will obviously lie on that party. The standard of proof will depend upon the purpose for which the allegation is made. If it is for the purpose of supporting a fresh allegation of contempt with a view to obtaining a fresh order for committal, then clearly it will be to the criminal standard. If it is for some other purpose, such as obtaining an order for further affidavits, the civil standard will suffice. We are not aware of any authority dealing with the standard of proof to which non-compliance with the conditions of suspension of a committal order must be proved. Yet this is a question which theoretically arises every time a suspended committal order is used to secure compliance with some procedural requirement, an everyday occurrence in county courts up and down the land. The committal order has already been imposed, following the proof of a contempt to the criminal standard. A breach of condition may or may not involve a further contempt of court, but the application is not to impose a further sentence but to implement the one which has already been imposed. It is not self-evident that proof to the criminal standard is required. In practice, we suspect that the difficulty is more apparent than real: it will usually be obvious whether or not the condition has been complied with. iv. Whatever the position in relation to the privilege against self incrimination in proceedings alleging further contempts, there can be no such privilege in proceedings concerned with whether or not the conditions of suspension have been complied with. The relevant contempt has already been proved and the only question is implementation of a sentence already imposed. The right time to worry about whether committal is the right order is when the committal order is made. Thereafter, it would not be right to ignore the fact that the committal order has been made and treat any subsequent application in relation to it as a fresh application to commit. v. The judge was right to refer to the width of the court's discretion when ordering "post judgment" cross examination for the purpose of assisting execution. However, we are troubled about blending cross examination of that more general kind with cross examination aimed either at establishing a breach of the conditions of a suspension or at establishing further contempts of court.

[52]On the last point, it seems to us wrong to subject Mr Symes to general cross examination at this stage, solely because he is being given the opportunity to comply finally with the undertakings. We doubt whether, if it were not for the “peg” of possible breaches of the undertakings , it would have at this stage even been considered appropriate to apply for a general order for cross examination, and certainly not before a High Court Judge. If that is so, then it is not right to use the “peg” to make an order that would not otherwise have been made.

[53]But of greater significance, it does not appear to us to be right to blend the two. The court’s concentration should be on considering whether the evidence given by Mr Symes has now provided the information required to be provided by the undertakings, with the possible consequence of an adverse finding being his imprisonment. If the wider ranging examination is allowed, it will not be clear to Mr Symes whether he is dealing with that matter, or something different. Furthermore, Mr Symes’ response, or failure to respond, to the wide ranging questions, are not factors which the court should have in its mind in considering whether the suspension should be lifted. There are dangers that, without an eye being kept firmly on the ball of whether the particular undertakings are being fulfilled, extraneous factors may influence where they should not.

[54]In relation to the alleged non-compliance with the undertakings, the proper sequence of events would be as follows:(i) First, a preliminary decision should be made as to whether there is a prima facie case that Mr Symes has not, by delivering his compliance affidavits, fulfilled his undertakings. If he has done then the prison sentence falls away. (We say at once that the case is a very strong one that he had not complied, as was the view of the judge; but, if Mr Symes wished, he was entitled to a ruling on that issue by reference to the individual undertakings and the affidavits submitted within the time permitted.)

(ii) Secondly, if there is a prima facie case of non-compliance, it would not be in the interests of the claimants or the court to lift the suspension and impose imprisonment, if Mr Symes were prepared now to comply. The court could then direct that if Mr Symes wished to have a further opportunity of fulfilling his undertakings, he should attend to be cross-examined on his compliance affidavits and on any further affidavit he sought to rely on as assisting him on compliance even if now late. (This, we think, was what the judge had in mind in referring in the course of argument to the possibility of allowing Mr Symes to have “a second bite at the cherry” [see pages 123-124 of Day 1].)

(iii) Thirdly, cross examination should be aimed at achieving compliance with the undertakings. Obviously some latitude would have to be allowed to the cross-examiner in achieving that end and, having regard to the nature of the undertakings, the cross examination is bound to be fairly wide ranging. But that is not the same as allowing the full width of a post-judgment cross examination. We will return to that point below.

(iv) Fourthly, Mr Symes should be entitled to claim privilege against self-incrimination in the proceedings alleging fresh contempts, even though that relates to the very order under scrutiny, and in relation to any further contempts which might be alleged in these proceedings. (Although contrary to the view expressed by the judge, based on passages from Rimer J's judgment in Cobra Golf Ltd v Rata

[1998] Ch 109

where he discussed the point without deciding it,this is now conceded by the claimants to be correct, having regard to Arden J's ruling in Memory Corporation v Sidhu

[2000] Ch 645

).But he should not be able to claim that privilege in relation to compliance with the undertakings, if no fresh contempt proceedings are being brought in relation to them, and all that is in issue is the lifting of the suspension.

Fresh allegations of contempt

[55]A further concern is that proper consideration does not appear yet to have been given to the applications relating to the paragraphs in the body of the order. Compliance with those was not a condition of suspension of the term of imprisonment. Again, the procedure should be, first, to see whether they have been complied with. If not, it should be made clear whether the claimants are going to allege contempt.

[56]The terms of paragraph 3 of the re-amended application of the claimants would indicate that it was intended to allege contempt. But at day 1 – 114 [page 308 of bundle A] an exchange between Mr Steinfeld, Peter Smith J and Mr Slade may have given the impression it was not so intended by that paragraph. However, that interchange was strictly limited to Mr Steinfeld saying that it was not intended to make an application for committal of Mr Symes “for breach of the undertakings”. If Mr Symes is to be allowed to give further evidence and to be cross-examined, so as to comply albeit late with these paragraphs of the order, he ought to know(a) whether he is being charged with contempt for any failure; and

(b) thus what his evidence relates to. If Mr Symes is to be at risk of being found in contempt by reference to these paragraphs, the application falls into the same category as the allegations of fresh contempts [see below].

[57]As regards the applications to commit for contempt based on new allegations, they too must of course receive separate consideration. But since, following the hearing of those applications and the undertakings aspect, the court is going to have to consider whether the suspension should be lifted and/or whether a further prison sentence should be imposed, it seems to us that it is right that the two aspects should be heard at the same hearing.

[58]How can the fact that Mr Symes cannot and indeed must not be compelled to give evidence on the fresh applications to commit for contempt be dealt with? We suspect that the problem is in reality unlikely to occur. Indeed this maybe what Mr Slade had in mind when he made his position clear to Mr Steinfeld on the morning of the 28th August. Before the claimants come to open both that matter and the undertakings matter, they will be able to ascertain whether Mr Symes can say whether he intends to give evidence on the contempt aspect, and whether he objects to the new allegations and the undertakings aspect being dealt with together. If he is going to give evidence on both, it would almost certainly be more convenient for him to deal with undertakings and further contempt at the same time. If he is not going to give evidence at all, then again dealing with all together would be sensible.

[59]Only if he were to say that he does not want to give evidence on the contempt aspect, but would on the undertakings aspect, would any difficulty arise. In that unlikely event, so that it cannot be said that Mr Symes is being compelled to give evidence on the contempt application, the right course would seem to be as follows. The contempt application should be dealt with first, at least to the following extent. The application should be opened and the evidence called directed to that application. Mr Symes can then make up his mind as to whether he wants to give evidence to deal with the allegations. If he does not, then the judge should rule whether he finds the contempt established, and adjourn consideration of sentence until after dealing with the undertakings matter.

Submissions of the Parties

[60]Against that background, we turn to the written submissions put before us on behalf of Mr Symes and on behalf of the claimants.

[61]On behalf of Mr Symes, it is suggested that it is not a legitimate use of cross examination to test whether Mr Symes has complied with the undertakings. There is in a case, where the purpose of obtaining an order for disclosure is to trace assets, a difficult area when the question for the court is whether cross examination should take place. If the purpose is still the tracing of assets particularly post judgment the court may be more inclined to allow cross examination, but if the purpose is to establish breaches of undertaking or orders so as to establish contempt with a view to committal, then the court will not order cross examination. A case where a contempt has been found and suspension of a prison sentence ordered, subject to certain undertakings being complied with, is not in one category or the other. But our view is that in this case if Mr Symes wanted to take a stand on the basis that affidavits delivered showed that he had complied with the undertakings, technically he should be allowed to do so. However, as we have said, it is of little practical significance in this case. It must be open to the claimants to put in evidence to demonstrate that the compliance affidavits do not comply with the undertakings. Once a prima facie case has been shown, it must be open to the court to allow Mr Symes an opportunity of making good the deficiency, but only on the basis that he is prepared to be cross-examined on all the evidence he has given. It is true that, at this stage, if Mr Symes fails still to comply with the undertakings he will be at risk of the suspension being lifted, but we do not see that there is anything unjust in that. Nor do we think that to allow Mr Symes the opportunity of complying now with the undertakings, only on the basis that he be cross examined on his evidence, offends the principles to which the skeleton put in on behalf of Mr Symes refers. We do not in particular accept that the order “compels” Mr Symes to give evidence on a contempt application. This is not a contempt application.

[62]The claimants, by their first skeleton prepared for the directions hearing before the Court of Appeal on 13th October 2003, concentrated so far as cross examination was concerned on compliance with the undertakings. But by a further skeleton dated 31st October 2003 they made clear that they were seeking to defend the view that without cross examination the compliance affidavits would not count at all. They suggested that the order in the form it was made was a “normal form of order”; and they made clear that in addition to compliance they desired to have the widest possible rights to cross examine as to assets generally.

[63]We do not accept the argument that it could be right to treat the compliance affidavits as not having been served, if cross examination does not take place. The first question should be whether there is a prima facie case that there has not been compliance. For that reason, we would not accept the order as the “normal form” until a prima facie case has been shown. It is however a perfectly proper order in relation to further evidence which may be relied on at an interlocutory hearing. For the reasons we have given, we do not think that it is right to blend cross examination aimed at getting Mr Symes to fulfil his undertakings, with more general post-judgment examination. We accept that at present there is a strong likelihood that such an examination will take place and that it may not be far away, but it should not take place in combination with the undertakings issue. It should take place in accordance with the normal procedures, and we would think before a Master rather than a High Court Judge.

Conclusion on Cross Examination Aspect

[64]The question whether to order cross examination is of course in the discretion of the judge. In large measure we would understand the judge to have in reality been taking the same view as that expressed above, save for certain important distinctions. He may not have formed a concluded view as to whether Mr Symes was in breach of the undertakings. He clearly felt that it was possible to combine the wider post judgment cross examination with consideration of whether Mr Symes was prepared to comply with the undertakings. However, his form of order, which (absent attendance for cross examination) disallows reliance even on the affidavits filed in time, was not in our view the proper order.

[65]The question on an appeal, if permission were granted, would be whether the judge had misdirected himself, or whether any difference from the approach we have suggested falls outside that wide ambit of discretion allowed to the judge (G v G

[1987] 1 WLR 647

). We have considerable sympathy for the difficult task which he faced in this quite exceptional case. His robust handling of a very evasive deponent is not to be criticised. However, in our view, he did misdirect himself for the reasons we have given. In particular, his view that the general cross examination could be blended with consideration as to whether Mr Symes was complying with his undertakings was in our view wrong.

[66]We would thus grant permission to appeal on this aspect and allow the appeal. We would direct as follows: i) The claimants' applications that there has not been compliance with undertakings 1, 6, 7, 8, 10 and 11 be listed as soon as possible. ii) Mr Symes do attend for cross examination on whether the affidavits filed in purported compliance with the undertakings given on 22 May do so comply and with a view to securing compliance if they do not. iii) If he refuses so to attend, or to answer questions if he attends, the affidavits may be admitted in evidence but the weight to be attached to them is a matter for the judge. This refusal to answer questions would only be a contempt of court if the judge had concluded that prima facie his compliance affidavits did not fulfil his undertakings. iv) Mr Symes be permitted to put before the court further evidence either by way of affidavit or orally so as to fulfil the obligation of compliance, but must attend for cross examination thereon with a view to achieving compliance. v) If before Mr Symes puts in or gives evidence he wishes to challenge the affidavits put in by the claimants in any material respect, he should give notice that the deponents should attend for cross examination prior to his giving evidence.

[67]We would direct that the applications for committal for contempt are listed at the same time, with the following further directions: vi) If Mr Symes desires to give evidence on the contempt applications, the undertakings aspect and the committal applications should be heard together. vii) If Mr Symes does not desire to give evidence on the contempt applications, the contempt applications should proceed first, and a finding be made as to whether contempt is established. viii) If it is not established, the applications should be dismissed; if established, sentence should be adjourned pending the hearing of the undertakings aspect.

[68]As regards the alleged breaches of paragraphs 1-3 of the order of 22nd May 2003, it will have to be resolved whether the respondents will be applying to commit for contempt if a breach of those paragraphs were shown. If Mr Symes is at risk of such an application, then we accept it will be convenient to deal with the ruling in relation to these paragraphs and whether there has been compliance at the same time as dealing with the breach of undertakings and the fresh applications for contempt.

[69]However Mr Symes will be entitled to a ruling as to whether there has been compliance with the order by virtue of the affidavits sworn. If there has that will be the end of the matter. If there has been non-compliance, then Mr Symes should in the same way as for other matters be given an opportunity by the giving of further evidence to comply but only on the basis that he attends for cross examination.

Recusal

[70]It is fundamental to our system of justice that everyone is entitled to a fair hearing by an independent and impartial tribunal. The allegation made against the judge is based on apparent bias. Actual bias is not asserted. The apparent bias relates, not to any apparent bias as against Mr Symes, but to the judge’s attitude to Mr D and Mrs N who were potential witnesses in the trial of the issue relating to the first statue. They are now potential witnesses in connection with the Akhenaten statue, and with the question whether Mr Symes is guilty of contempt as alleged in the fresh contempt applications, or whether he has complied with undertaking 6 of the undertakings given on 22nd May. It is common ground that, although Mr D and Mrs N would if they gave evidence at all only give evidence on the Akhenatan issue, it would be wrong to hive that issue off. All issues must be examined together, and thus recusal from trying that issue would lead to recusal from trying the whole.

[71]The allegations made on behalf of Mr Symes giving rise to this application commence with a most unfortunate comment made by the judge when considering whether Mr D and Mrs N should be joined as parties to the statue issue. They related then to his attitude to Mr D and Mrs N when they did not appear to defend their position in relation to that issue, and the judges attitude during that trial to Mr Roberty a Swiss lawyer who sought to explain that Mr D and Mrs N were relying on their constitutional rights in relation to service. They relate to a further unfortunate comment during counsel’s final submissions on that issue. We shall come back to the detail in a moment.

[72]The judge in refusing to recuse himself founded that refusal on essentially the following points:(1) First as regards the comment made while considering whether Mr D and Mrs N should be joined, the judge relied on the fact that Mr Burnett QC representing Mr Symes at the May hearing expressly waived any reliance on the making of that comment as a ground for suggesting that the judge should not have heard that issue; that ruling meant it was not open to Mr Symes to raise the point in relation to the trials of later issues.

(2) In any event he was of the view that his criticisms of Mr D and Mrs N were justified.

(3) He relied on the fact that Mr Slade had on Tuesday 26th August sought to persuade him to continue with the claimants’ application, in so far as it related to considering whether Mr Symes had complied with his undertakings, and only raised the question of recusal during the hearing on the 28th August and then only in connection with the fact that the judge would have to decide the Akhenaten statue point, which might involve the evidence of Mr D and Mrs N.

(4) His view was that this was just another tactic by those acting for Mr Symes to delay matters.

(5) That there was nothing which he had said about Mr D or Mrs N which could be said to have led to a conclusion that a reasonably minded observer would think he was biased against them.

[73]We do not think that any concession by Mr Burnett QC that he would not argue that the judge should have recused himself from the trial of the statue (although it may be relevant to the ultimate consideration of the matter) prevents the comment being taken into account with other factors when examining whether the judge should recuse himself now. Furthermore although it must have some bearing on the court’s attitude that Mr Slade did not raise the question of recusal until late in the day and after he had apparently been happy to have an application heard by the judge, that fact if there were grounds for concluding that a fair minded observer would not think the judge could conduct the next aspect fairly, should not preclude the court from saying so.

[74]There may be grounds for thinking that Mr Symes would like to delay matters, but when as we shall do in a moment consideration is given to the matters about which anxiety has been expressed on behalf of Mr Symes, we do not think it legitimate to dismiss the recusal aspect simply on that basis. Furthermore since another judge would be appointed and there are no grounds for thinking that apart from lengthening the process there would be any substantial delay in the process, it seems unlikely to be the motive.

[75]We should finally say this as a preliminary. Bias or apparent bias against a witness is as serious as bias or apparent bias against or in favour of a party. If, for example, a judge were to say before a case commenced, in relation to a witness whom he had heard give evidence before, that he simply did not ever believe a word that witness said, the party in whose favour the witness was to be called to give evidence would have a legitimate basis for asking the judge to recuse himself. In our view, the real question in this case is whether the comment of the judge, taken with the way the judge treated Mr D and Mrs N and Mr Roberty during the hearing on the statue issue, and his further comment, would lead an independent observer to conclude that he could not now approach their evidence fairly.

[76]That the above is the right question flows in our view from the following paragraph in Re Medicaments & Related Classes of Goods (No 2)

[2001] 1 WLR 700

where Lord Phillips summarised the position in paragraph 85 as follows:

“When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”

[77]That paragraph was approved in the House of Lords in Porter v McGill

[2002] 2 AC 357

[see the speech of Lord Hope of Craighead paragraph 102 with which all their lordships agreed].

[78]Let us now address the details of the matters relied on. The starting point is the unfortunate comment made by the judge during the course of a directions hearing prior to the trial of issue as to ownership of a granodiorite statue. As appears from previous passages in this judgment, that was an issue he ordered to be tried in the context of an application to commit Mr Symes for contempt. The judge’s decision was that, since two persons, Mr D and Mrs N had put in witness statements which supported Mr Symes’ case that the statue had been one third owned by RSL and Mr D and Mrs N, Mr D and Mrs N should be joined as parties so as to be bound by the result of that issue.

[79]The trial of the issue was however only 6 weeks away. It was appreciated that, if service pursuant to the Hague Convention and in accordance with Swiss law were to be adopted, then there was no way in which Mr D or Mrs N could be served so as to be present at the then intended trial. In the course of debating that question the following interchange took place between Peter Smith J and leading counsel then representing Mr Symes, Mr Browne-Wilkinson QC:

“MR BROWNE-WLKINSON: The reason I say that is twofold. First to make such a direction without notice to Domercq or Nussberger would be regrettable and secondly, it might give rise to frightful difficulty in the context of contempt proceedings to at this stage. MR JUSTICE PETER SMITH: You mean the rogues might fall out? MR BROWNE-WILKINSON: I am sorry? MR JUSTICE PETER SMITH: You mean people might fall out? MR BROWNE-WILKINSON: No, I do not……”

MR BROWNE-WILKINSON: I am sorry? MR BROWNE-WILKINSON: No, I do not……”

MR BROWNE-WILKINSON: I am sorry?

[80]That comment on the part of the judge “You mean the rogues might fall out.” was quite improper. It indeed caused a reaction from Mrs N who wrote to the judge a letter dated 21st March 2003. By the letter she rejected service of the legal documents on the grounds that this was irregular; she refused to be a party to the claim on the grounds that the English court had no jurisdiction over her and she refused to submit to that jurisdiction and she said “I vehemently oppose the attitude of prejudice and partiality your lordship is showing by blackening me before I’ve even had a chance to present my case.”

[81]Mr D wrote a letter to Lane & Partners representing the claimants dated 7th April 2003 in which he set out his attitude at length. It did not suggest any partiality on the part of the judge but rejected the English court’s jurisdiction.

[82]It is perhaps unfortunate that on 13th March 2003, the date when the judge made his order, Lane & Partners writing to those representing Mr D suggested, first, that Mr D was “on record as being a close associate and acolyte of Mr Symes”; and then further, in rebutting any suggestion that Mr D had suffered any “prejudice”, said “Your clients when considering what “prejudice” they might claim to have suffered may wish to remind themselves of two aspects: first that any “prejudice” suffered – and for the avoidance of doubt, it is expressly denied they have suffered any – will have arisen out of their admitted close association and dealings with Mr Robin Symes; second, they will no doubt be familiar with the maxim that he who lies with dogs, must expect to catch fleas.” That letter is offensive and as the judge said in his judgment on the recusal aspect, it is not the type of letter which he would approve and it was “not helpful and it was better not sent …..”.

[83]Those advising Mr Symes suggest that the judge should have condemned the terms of that letter when giving his judgment on the statue issue. It might have been better if he had, but the terms of his judgment certainly gave no approval to the letter and this is not a matter of any great significance in the context of the recusal issue.

[84]In the result Mr D and Mrs N did not appear at the trial of the issue which began on 30th April 2003.

[85]Mr Mario Roberty a Swiss lawyer was called by the appellant at the hearing to give evidence on the substantive issue of ownership. He was asked if he could explain why Mr D and Mrs N had not attended. He explained that he did not appear on behalf of either of those two persons, but was able to tell the judge that they had decided to take no part because they felt that their constitutional right to be served in accordance with a convention of Swiss law had been unreasonably ignored and flouted by the judge. He also explained that in the case of Mrs N she had also been “put off” coming by the unreasonable and unjustifiable remark by the judge at the hearing on 13th March 2003 and by the terms of the letter from Lane & Partners.

[86]The real thrust of Mr Roberty’s evidence was, however, that Mr D and Mrs N were standing on their constitutional rights. He was further saying that they needed more time than the order allowed them in order to prepare for the trial of the issue. The difficulty with this latter point was that, as was pointed out to Mr Roberty, the order entitled Mr D and Mrs N on 48 hours’ notice to apply for further directions, and even for an adjournment on the basis that they needed time to prepare. Mr Roberty claimed to have misunderstood the 48 hour provision but on any view Mr D and Mrs N never did apply for further time.

[87]The judge during the examination of Mr Roberty asked him a number of probing questions. The interchange at page 145 of day 5 (page 109 of the bundle) will provide a flavour. Mr Steinfield asked:

“….. why should they then be reluctant to come to this court to produce their evidence and be cross-examined (like I am cross-examining you and have been cross-examining Mr Symes) in relation to their case? A. Because they have a constitutional right upon which they chose to rely to have their laws respected. Mr Justice Peter Smith: Why did they provide the witness statements then? The witness statement showed they were willing to have the issue determined in this court because they gave evidence on that issue? The Witness: This is an interpretation. Mr Justice Peter Smith: There’s no interpretation about it. They provided the witness statements in this court before I made the order for the purposes of assisting Mr Symes in the determination of the issue of the ownership of the statue. A. That is correct Q. They were quite willing to provide that evidence so they were not going to insist upon any constitutional rights? A. No. There are two different things at least in our understanding: one is to give evidence and the other one is to join in a claim. Q. Absolutely. You’re absolutely right. That is one thing that I was going to ensure that did not happen, that in effect your clients would have two bites of the cherry. They would come along here as witnesses. They were disbelieved, they could then say we were not parties, so we are not bound. Therefore the decision is nothing. That would be a complete waste of everybody’s time if the parties were to have to relitigate the same issue again? Wouldn’t it? A. This is a completely different way? Q. It is not. They came here as witnesses. A. Yes. Q. They said in evidence we have a one third share and I disbelieved them. What you’ve said is that does not matter. They can then go away and say well as we are not parties, that decision does not affect us. That would be a waste of the claimants’ time especially, because it would mean they would have to prove the same thing over again in another court. It would be a waste of Mr Symes’ time because his evidence would be conclusive, and it would be completely contrary to the spirit of the Lugano Convention, which is designed to ensure that you do not have the same issues being decided in courts around the world isn’t it? A. That is correct.”

A. That is correct A. This is a completely different way? A. That is correct.”

A. This is a completely different way?

[88]There was then a further interchange under which the witness made clear that it was in Mr N’s interest to have the issue clarified as soon as possible, because of the sums at stake and

the judge then said [pp109-110 transcript]:

“That answer with respect demonstrates why instead of writing letters saying I am not playing, she should have been here. She was willing to have this court adjudicate on the issue because she provided a witness statement for use by Mr Symes when that issue was going to be determined. She knew that this court (at the very least) involving the dispute between the claimant and Mr Symes was going to address this issue as to ownership. She provided evidence to assist on that. A. Yes, and she has an interest in helping this matter on. Q. She should be here and not playing games.”

Q. She should be here and not playing games.”

[89]It would be unfair to give the impression that the judge asked all the questions. He certainly did not, but he certainly asked more than 50% of the questions between pages 118-157 of day 5.

[90]By the date of the hearing, of course, Mr D and Mrs N had not appeared. There was thus considerable force in the points that the judge was putting to Mr Roberty. If there really was powerful evidence that RSL had only a one third interest, they were running a very great risk not to make some attempt either to postpone the hearing which was going to decide the issue of ownership, or not to appear in some way even as witnesses in order to provide that evidence.

[91]For completeness we should also mention a further complaint about a remark of the judge towards the end of the hearing (day 6, page 129) questioning Mr D’s “Gallic suspicion” of the English, and the reasons for it. This was no doubt intended as a light-hearted comment, but it risked being misunderstood, and should not have been said.

[92]The judge ultimately concluded that the statue did belong at all material times 100% to RSL and that neither Mr D nor Mrs N had ever had any interest in it. In so doing he effectively found that the appellants Mr D and Mrs N had dishonestly conspired together to present a false case to the court with regard to the ownership of the statue. He further found that the written agreement dated 17th November 1988 must have been a forgery. But these were conclusions that the judge was entitled to come to on the evidence. Indeed if Mr D and Mrs N did not appear in order to support the statements which they had provided, it was unlikely that a court could come to any other conclusion in the context of the way in which Mr Symes had dealt with the ownership of the statue in his various affidavits. It must be remembered that his original evidence was that this statue was owned 100% by RSL. It was only when the claimants discovered that a very much larger price had been paid for that statue than Mr Symes had admitted that the rather unlikely version which Mr Symes then put forward came to light.

[93]Mr Symes also relies on certain observations made by the judge during the hearing on 29th August 2003. The judge at page 50 line 7 asked whether Mr D and Mrs N were going to attend. Mr Slade was unable to answer that question and the judge is recorded as saying “The record is not very good on that is it?”. Later on page 58 line 3 the judge is recorded as saying that he decides the case “on the evidence and on the inferences I draw from people who should come but who choose not to come.”

[94]The above passages in the interchange on 29th August 2003 seem to us to add nothing to the picture.

[95]We thus return to the question whether a fair minded and informed observer would conclude that there was any real possibility that Peter Smith J was biased against Mr D and Mrs N. Although waiver as such should not disallow reliance on the comment made during the directions hearing, it is relevant when posing the question at this stage of the proceedings to look at the whole history. That comment was made on 13th March 2003 and judging by the full quotation the judge himself appreciated that it was a comment he should not be making. On the reaction from leading counsel immediately the word “rogues” became “people”. It was certainly not thought by anybody representing Mr Symes that that comment alone had rendered Peter Smith J unsuitable to try the issue relating to the statue, even though it was appreciated that Mr D and Mrs N were not going to give evidence. Once Mr D and Mrs N did not come to give evidence, then the judge was naturally entitled to be sceptical as to why it was that they at one time were prepared to put in statements, but were ultimately, because they had been joined as parties, not prepared to come and support the version of events as indicated in their statements. The judge’s questioning of Mr Roberty would indicate an inclination to get into the arena which judges should try and resist. But the questions although robust do not indicate any bias against Mr D or Mrs N, as opposed to an inclination to decide the issue against them because of the way they had behaved. The judge’s comment during counsel’s closing submissions was again a comment that a judge simply should not make. It may be made in jest, but it is highly likely to be misunderstood.

[96]All the above said, we do not think that a fair minded observer would conclude in the light of all the circumstances that there was a reasonable possibility that Peter Smith J was biased against Mr D and Mrs N. That is not to say that he may not draw inferences against them if they do not come to give evidence in order to support the version of events given by Mr Symes, but that he must not be precluded from doing.

[97]What is critical is that if they did come and give evidence, there is no reason to think particularly in the light of this judgment, that the judge will not give that evidence due consideration with all the other evidence and try the issue fairly.

[98]We would thus dismiss the application for permission to appeal the recusal issue

Order

Application dismissed. Minute of Order to be agreed on paper.