Adams v Law Society of England & Wales [2006] EWCA Civ 1857

Case No A3/2006/0582[2006] EWCA Civ 1857
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
1) CHANCERY DIVISION
2) QUEEN’S BENCH DIVISION
((1) HIS HONOUR JUDGE WEEKS QC
((2) MR J SULLIVAN)
Venue Royal Courts of JusticeDate Tuesday, 19 th December 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE HOOPER
Between
ADAMSAppellant- v -
Between
THE LAW SOCIETY OF ENGLAND AND WALESRespondentTHE QUEEN ON THE APPLICATION OF ADAMSAppellant- v -THE BAR COUNCIL JOINT TRIBUNAL & OTHERSDEFENDANT/RESPONDENT
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
for THE APPELLANT DID NOT APPEAR AND WAS NOT REPRESENTED. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
J U D G M E N T

LORD JUSTICE HOOPER:

There

[1]are two applications for permission to appeal listed before me this morning. The first is an application for permission to appeal the judgment of HHJ Weeks QC dated 3 March 2006. HHJ Weeks ordered that the claim be struck out as an abuse of process, that the claimant (now appellant) pay the costs of the claim including the costs of the application, such costs to be subject to detailed assessment if not agreed, and that permission to appeal the order made by HHJ Weeks be refused. There is also an application for permission to appeal the order of Sullivan J made on 22 November 2005. Sullivan J refused an application for permission to apply for judicial review and thereafter refused permission to appeal.[2]Mr Adams is not present and in writing he has made an application for an adjournment in respect of both permission applications. Before considering that application I shall set out some of the history of the proceedings in both cases.[3]I start with the appellant’s case against the Law Society, case number 2006/0582. The appellant is a solicitor who was admitted to the roll in 1978. At the beginning of 2004 the Law Society received four complaints by clients and former clients against the appellant. The Law Society sent in a forensic team to carry out an inspection on 23 March 2004. After considering the report of the forensic team the Law Society suspected dishonesty and the relevant panel decided to intervene in the appellant’s practice. On 1 September 2004 the solicitors, instructed by the Law Society, put the intervention into effect, served a notice on the appellant at his home and office. The appellant refused to hand over the files. As a result there were two applications made. The Law Society applied for an injunction requiring Mr Adams to hand over the files and the appellant applied to put a stop to the intervention.[4]The application was heard by Laddie J on 3 September 2004. The appellant was represented by counsel. Laddie J decided that the intervention should continue and ordered the appellant to hand over the files to the solicitors for the Law Society. The Law Society undertook to exercise its powers in such a way as to mitigate the effect on the appellant and not be proactive in contacting his clients. The appellant undertook to issue and serve an application for the withdrawal of the intervention as soon as reasonably practical.[5]Laddie J directed the following: 1) The appellant was to file and serve any further evidence by 4.00pm on 8 September 2004. 2) The Law Society be at liberty to file and serve evidence in reply thereafter. 3) There be liberty to either party to apply to fix a date by which such evidence be filed. 4) The application was to come on as an application by order and certified as urgent business on a date to be fixed after 13 September 2004, time estimate be agreed between the parties.[6]The appellant dispensed with his legal team and on 8 September 2004 issued a claim form under Part 8. The appellant included with the claim form his “Particulars of Claim”. The claim put forward in the Particulars of Claim can be summarised as follows: 1) The appellant contended that in the light of evidence there was no reason to suspect dishonesty on his part. 2) The fact that the appellant was not given an opportunity to respond to the Law Society report before the resolution was in breach of his article 6 ECHR rights as incorporated by the Human Rights Act 1998. 3) The relevant statutory provision should be made in such a way as to make them compatible with the ECHR and therefore to import an obligation to give the appellant notice of the report and to give an opportunity to respond to the report. The appellant’s response should then be taken into account. 4) In the alternative, if the statute cannot be read in the manner contended for, a declaration of incompatibility ought to be made. 5) The appellant sought damages under the 1998 Act and/or a common law for breach of statutory duty.[7]No evidence was filed with the claim form. The appellant failed to comply with the directions of Laddie J. The Law Society wrote to the appellant on several occasions between September 2004 and May 2005 asking for his evidence. The evidence was not forthcoming.[8]On 31 May 2005, the Law Society issued an application to strike out the appellant’s claim. The application was listed to be heard on 15 July 2005. The appellant wrote to the assigned Master requesting an adjournment. On 1 July 2005 the Master granted the adjournment and fixed the hearing for 24 October 2005. The appellant was ordered to file any evidence in opposition to the Law Society’s application to strike out the appellant’s claim within fourteen days from service of the 1 July 2005 order. The appellant failed to comply and instead in the week before the hearing fixed for 24 October 2005 he produced two documents, one entitled “Second Witness Statement” and the other “Third Witness Statement”. They were both unsigned. Having regard to the very late service of those two documents, the hearing fixed for 24 October had to be adjourned. On that day the Master ordered that the applications should be referred to a judge for hearing some time after 10 January 2006. The appellant was to file evidence by 4.00pm on 20 November 2005 and the Law Society to file evidence in reply by 18 December 2005. The appellant failed to comply.[9]The Law Society filed further evidence in February 2006 and the appellant filed a fourth witness statement of some three hundred pages and a short fifth witness statement a few days before the hearing. The application came on before HHJ Weeks on 3 March 2006. He gave summary judgment for the Law Society and struck out the appellant’s claim. The appellant filed a notice seeking to appeal that decision on 16 March 2006.[10]I turn to the procedural history of the other application for permission. The appellant disputed his liability for the fees of a barrister who claimed to be owed £8,000 plus VAT as a brief fee for a 2-day trial in March 2001. The matter was referred to the joint tribunal of the Bar Council. This was in accordance with the standard terms of work on which barristers are instructed by solicitors. The terms provide in Clause 14 that fee disputes should be referred to the joint tribunal, and that the decision of the tribunal is to be binding upon the parties. The appellant agreed to be bound by the joint tribunal procedure on 26 November 2003 subject to a requirement that there be a period of negotiation between the parties before any hearing. The joint tribunal decision was made on 19 November 2004. The joint tribunal found the appellant liable to the barrister for the £8,000 plus VAT claim. The appellant attempted judicially to review the decision of the joint tribunal. He was unsuccessful on the papers before Newman J who gave his decision on 25 April 2005. The renewed application for permission for judicial review was then considered and refused at an oral hearing by Sullivan J on 22 November 2005. Mr Adams attended that hearing and the transcripts of his submissions can be found in the bundle that has been prepared for these appeal proceedings.[11]Returning to the case against the Law Society, the appeal bundle which has been prepared for the hearing includes at page 8 the grounds of appeal, which take up some two pages. Attached to that is a skeleton argument which had been prepared for the hearing before HHJ Weeks. That runs from page 10 through to 19 of the bundle. At tab 2 of the bundle from page 27 to 34 is a document dated 30 May 2006 which is headed:
“Claimant’s Brief Skeleton Argument for Application for Permission to Appeal enclosed with bundle lodged on 30th May 2006.”
There are other documents within the bundle, but the substance of the argument being put forward by Mr Adams will be found in the document to which I have just referred.[12]In the case of the application for permission to appeal the decision of Sullivan J, there is a very substantial bundle containing over 386 pages. It includes the appellant’s notice and a one and a half page ground of appeal attached to which are the detailed statements of the grounds which were before Sullivan J.[13]Against the background of all of that material I turn to the application for an adjournment. The first application for an adjournment in relation to the claim against the Law Society, in regard to the intervention, was on 26 September 2006. Mr Adams wrote to the Civil Appeals Officer saying that he had been signed off work for a fortnight until Monday 2 October 2006. He enclosed a copy of the medical certificate which says this:
“You should refrain from work for two weeks”
. Then against the words:
“Diagnosis of your disorder causing absence for work” is to be found the words: “Stress related problems”
. That was signed by a doctor on 18 September 2006. The letter of 26 September also referred to further material which the appellant would wish to place before the court.[14]On 28 September Mr Adams wrote a 4-page letter to the Civil Appeals Office enclosing a report from a consultant psychiatrist, Dr Pierides. Mr Adams then set out a number of further matters which concerned other proceedings in which he was involved. In paragraph 3 he refers to the report of Dr Pierides and to the fact that he suffered from a fairly severe knee injury causing him pain. He said that he had been referred to a consultant orthopaedic surgeon. The letter continues:
“I am also suffering from other long standing and more recent physical problems, from one of which I am again being referred to a separate consultant.”
[15]In paragraph 4 Mr Adams set out what he saw as further preparation required before the application for permission to appeal was considered. In paragraph 4a he refers to his draft 312-page fourth witness statement. He then refers to other material which he would like to elaborate on. He ends the letter by saying that if

justice is to be done he was not in a fit state to present the arguments:

“The lack of preparedness is not the reason for the application – I appreciate the fact that one or other party is not ready is not usually – in the absence of some special reason – a sufficient reason to grant an adjournment. It is in fact my ill health and the intolerable pressures on me for some time past which have recently reached crisis point, which are responsible for my being unable to cope, to finalise the essential preparations for my appeal and now not being in a fit state to deal with this or any of the other matters above. I should mention that I have been forced to take huge amounts of time away from my non-solicitor temporary work over the past year. For example in February 2006 I was away for three of the four weeks I should have been present to work in order to prepare my opposition to the Society’s strike out application being heard on 2nd and 3rd March 2006. The continual disruption and absence resulted in a row with the company I am contracted to provide services as a consultant, with the result my services were summarily dispensed with in June 2006. They subsequently took pity on me and reinstated me – realising I was the victim of huge external pressures – but my present illness places all this in jeopardy once again.”
[16]Attached to that letter was a psychiatric report from Dr Pierides. That report states:
“Thank you very much for referring Nigel Adams, whom I saw in my outpatient clinic at the Capio Nightingale Hospital. Nigel is suffering from a moderately severe depressive illness, precipitated by extremely difficult financial, legal and professional circumstances. Nigel tells me that he is simply not coping at the moment, has long periods in the day where he feels extremely low and his wife and family are increasingly concerned about him. As you noted in your helpful referral letter, he has all the classic symptoms of depression including poor appetite, insomnia, early morning wakening, poor concentration and continued obsessional ruminations about his circumstances. “He had some psychiatric difficulties when he was 16 and attended psychotherapy at the Tavistock clinic. He was also seen at the Maudsley Hospital when he was around 20 years old. Approximately 2 years ago, he began to have difficulties sleeping and was prescribed a short course of sleeping tablets. I understand that he has never used antidepressant medication before. I understand from his notes that he has no family psychiatric history. His two children aged 21 and 16 are fit and healthy. He relies heavily on his wife who he tells me is an extremely capable person and the head teacher at a school for special needs children. “I am pleased to note that Nigel has not resorted to alcohol and has never used illicit drugs. “He prides himself on his physical abilities and used to be a competitive runner until the onset of some knee problems. I understand that he has a number if other physical ailments for which he is currently receiving care from your good self. “On mental state examination, Nigel presented as an immaculately dressed man who looked younger than his age. Eye contact was poor and he tended to talk past me rather than to me. He spoke continuously and at times I had to interrupt him in order to bring him back to the point. His thoughts are preoccupied with the details of his current problems which he was eager to express in minute detail. He gets lost in his thinking and he is over inclusive in his thoughts. He is unable to process out what is relevant and what is not relevant in answers to questions. “I note that on the Beck’s Depression Inventory, a 21 item questionnaire, Mr Adams had all the symptoms of depression including some fleeting suicidal thoughts. On the Beck’s Anxiety Inventory, his scores were lower but well within the range of diagnosis. “Opinion and recommendation “Mr Adams requires treatment for a depressive illness. My concern is if he does not have appropriate treatment at this stage, his illness may well worsen given his extremely difficult current circumstances. Mr Adams requires a referral to the local catchment area Consultant Psychiatrist, antidepressant medication and a referral on for Cognitive Behavioural Therapy. I do not think that he is in any fit state at the moment to be able to conduct his business affairs or to be in a position to attend a tribunal or court. I would suggest that once he has been vigorously treated for his depressive illness and has completed his course of CBT, he could then resume attending to his current business and legal affairs. He will require further assessment in about 8 weeks by which time I hope he will have completed at least 3 or 4 sessions of therapy and have started on antidepressant medication. “I have explained to Mr Adams that since finances are difficult at the moment that he should attend your surgery for a referral to his local Consultant Psychiatrist and CBT Therapist. I have explained to Mr Adams that I will copy this letter to him so that he himself is aware of developments. Thank you very much for referring Mr Adams to me. I think he carries a good prognosis if he is effectively treated because he has an intact personality, a supportive relationship and no significant previous history of mental illness in the last 10 years. He is clear that his current mental illness has been precipitated by some very difficult personal circumstances. I thank you once again for the referral.”
[17]As a result of that letter and the accompanying report it was ordered that the application for permission to appeal be taken out of the list for 3 October and relisted for the week beginning 18 September 2006. Any further application for an adjournment, it was ordered, was to be supported by a psychiatric report and prognosis. The case was then listed for today, 19 December.[18]On 15 December Mr Adams wrote a letter to the court including a further medical report from Dr Pierides, the consultant psychiatrist. He sought an adjournment in the light of that report pointing out that the fact that his case had been earlier adjourned: “… was in the expectation that by now I might have completed a course of treatment”.[19]The letter from Dr Pierides states:
“I write to you with a progress report on Mr Adams and to say that I have seen him today in my clinic here at the Capio Nightingale Hospital. “Nigel has not made much progress since our last communication, simply because he has not had any treatment. I understand that he is seeing a member of the Community Mental Health Team on 20 December 2006 for an assessment. In my experience the way that the assessment will work is that he is likely to see a nurse at the CMHT belonging to a Brief Assessment Team, thereafter he will be discussed in the weekly team meeting when new referrals are discussed. “Following that discussion, a decision will be made whether or not he is suitable for CBT. I cannot imagine that he will not be suitable for CBT and will then expect he will be placed on the waiting list for CBT. I understand that the NHS waiting list could be something approaching 6-9 months. This will mean that Mr Adams will not have had to recommended treatment prior to recommencing his legal issues with the courts. It remains my view that Nigel is unable to cope with these and other such matters until he has completed the course of treatment I recommended. “I understand that Mr Adams is unable to fund any treatment privately because he is not privately insured. “In terms of his mental state he remains rather impatient to get treatment so that he may at some point resume his duties. “I have advised him that if he is able to do some work, he should, because a limited amount of work, perhaps a day a week, can only be helpful in maintaining his morale during what is a most difficult period for him. “Thank you for all your help regarding Mr Adams. I will see him again in the New Year and will write further to you.”
That application for an adjournment was placed before Smith LJ, who directed as follows:
“In view of the fact that treatment is unlikely to begin for at least six months and will then take some time to complete, it does not seem practicable to defer consideration of this application until the quite uncertain time at which the applicant will be declared fit. The application for an adjournment is refused. If the applicant does not attend, the application will be dealt with after consideration of the papers.”
[20]On 18 December, in purported compliance with the order of Smith LJ, Mr Adams sent a letter containing fifteen pages to this court requesting an adjournment. In the letter he states that he will be unable to appear before the court in respect of either of the two permission applications with which this hearing this morning is concerned. He said this:
“I would gladly attend tomorrow and argue my case for an adjournment, if I could, but I have two problems. I have an urgent dental appointment for a suspected fractured tooth which is causing me significant pain. If I cancel I may not get seen this side of Christmas. Secondly, I simply am not in a fit mental state to attend any hearing. In my present state I cannot cope with even moderate stress and whilst otherwise in certain circumstances can sometimes be a passably competent advocate, I at present get quite excitable and upset at oral hearings (and with other things besides). Of course, I am in a far less of a position and state to argue the application for permission: that is simply out of the question.”
[21]The letter then continues with two examples of what had occurred during the course of the proceedings, and then sets out at page 3 arguments as to why the order of Sullivan J refusing permission to appeal was wrong. He complains that Sullivan J had simply ignored his arguments. In one of the paragraphs he refers to a conversation with his next door neighbour, a Professor of Law at the University of London, and seeks to pray in aid what the next door neighbour had said to him about these cases.[22]In the letter at pages 4 to 5 he sets out the history of the earlier applications for an adjournment. At paragraph 5 onwards he sets out his case that the papers are not in an adequate state. He says:
“They are nowhere near the state I intended them to be for before the permission hearing.”
And he refers to illnesses which he has been suffering for some time now. He says:
“I was labouring under considerable difficulties even before my illness later this year and have probably been in a bad way since before the intervention.”
He complains of a lack of sleep during and following the investigation. He complains that the intervention destroyed him professionally, emotionally, mentally and came close to wrecking his marriage.[23]He then sets out a number of reasons why the decision of HHJ Weeks is wrong. At paragraph 15 he cites what his neighbour, the Professor, had to say about one of his arguments. Apparently the Professor explained in astonishment:
“‘It’s absolutely unbelievable!’”
[24]In paragraph 22 onwards he addresses the concern about the indeterminate nature of his treatment and recovery. In paragraph 22 he says:
“I do not understand why in principle it should be in order for a party to say his treatment…will be complete in three years, at which time he will be able to face his various…hearings, but not if there is uncertainty, even if in fact [it can] be completed in twelve months?”
In paragraph 24 he says:
“I also respectfully suggest that the indeterminate length of an adjournment on health grounds - looking at the matter prospectively – is logically and justly irrelevant. If it takes six to nine months so be it. It takes – and more important should take - what it takes.”
[25]In paragraph 25 he says that he was attending an assessment appointment on Wednesday 20 September and he said he could use that to ascertain the length of the waiting list and he could ask for expedition for the suggested treatment. He then suggests that if the court were to order a further adjournment of say two months, or better still two and a half months, this would enable the picture to become clearer:
“It would be likely by then definite dates for the starting and completion of treatment would be known and the Court could make a more informed decision.”
I take that from paragraph 26 of the letter.[26]In paragraph 27 he writes:
“I hope that suggestion commends itself to you, although I say again that if it say takes me twelve months to be in a fit state to deal with all these legal matters, then surely that is the just cause to take?”
[27]In paragraph 28 he attacks what he calls the fraudsters at the Law Society, and then in paragraph 29 and 30 he says that if this court were to continue with the hearing in his absence that in itself would be a breach of Article 6. Attached to that letter is a further letter from the consultant psychiatrist that is dated 28 September:
“Thank you very much for referring Nigel Adams, whom I saw in my outpatient clinic at the Capio Nightingale Hospital. Nigel is suffering from a moderately severe depressive illness, precipitated by extremely difficult financial, legal and professional circumstances. Nigel tells me that his[sic] is simply not coping at the moment, has long periods in the day where he feels extremely low and his wife and family are increasingly concerned about him. As you noted in your helpful referral letter, he has all the classic symptoms of depression including poor appetite, insomnia, early morning wakening, poor concentration and continued obsessional ruminations about his circumstances. “He had some psychiatric difficulties when he was 16 and attended psychotherapy at the Tavistock clinic. He was also seen at the Maudsley Hospital when he was around 20 years old. Approximately 2 years ago, he began to have difficulties sleeping and was prescribed a short course of sleeping tablets. I understand that he has never used antidepressant medication before. I understand from his notes that he has no family psychiatric history. His two children aged 21 and 16 are fit and healthy. He relies heavily on his wife who he tells me is an extremely capable person and the head teacher at a school for special needs children. “I am pleased to note that Nigel has not resorted to alcohol and has never used illicit drugs.”
[28]There is a further fax from Mr Adams addressed to me. In that letter he states that he cannot attend this morning and feels very strongly that his rights to an oral hearing and just as important the right to prepare all the necessary written material have been swept away unjustly. There is then attached to that a 5-page document headed:
“Thoughts of Nigel Adams on Verdi and the doctrine that if there’s no goodwill/clients left there’s no point in withdrawing the Notice of Intervention.”
He says that those notes were commenced on Saturday 24 September 2005 and updated as at 5 September 2006.[29]There is a further letter from the solicitors to the Law Society in the case of the appellant against the Law Society. The solicitors are aware of the application for an adjournment and write:
“The Law Society is obviously keen to finalise the proceedings as quickly as possible, but recognises that the court may well wish to have regard to Mr Adams’ existing medical condition when determining whether or not an Application for adjournment should be granted. “If therefore in the circumstances the court decides to adjourn the matter, we are instructed that the Law Society will not raise an objection thereto.”
[30]Although the Law Society by that letter, which has just been handed to me, takes the view that it is a matter for the court to decide the issue and that they do not raise an objection, it seems to me that it is important for me to decide for myself whether this application should be granted.[31]Although Mr Adams claims that it would be unfair to him to resolve the issue, and although the Law Society take a neutral stance in the matter, I have to bear in mind the fairness not only to Mr Adams but also the proper functioning of the court. It is important that appeals be disposed of within a reasonable time. Having regard to the whole history of these proceedings, it seems to me that there is no real likelihood of Mr Adams being ready to prosecute these applications for permission within the foreseeable future. I reach that decision taking into account all of the letters from the psychiatrist and taking into account the whole history of these proceedings.[32]I note also the reference to a dental appointment this morning. It is important, in my judgment, to achieve finality. The rights of the defendant to a fair appeal are obviously important but they must be balanced against the needs to achieve finality and bring applications of this kind to a conclusion one way or the other. That said, I would not refuse an adjournment if I considered that there was any merit in either of these two applications. In my judgment there is no merit for the reasons which I shall now give.[33]I turn to the judgment of HHJ Weeks. He sets out the grounds for intervention under the Solicitors Act. That entitles the Law Society to intervene where amongst other things “the Council have reason to suspect dishonesty” on the part of a solicitor. The judge sets out in paragraph 2 of his judgment what it was which led the Law Society “to have reason to suspect dishonesty”. I note what the appellant has to say about those grounds in the various documents to be found in the appeal bundle.[34]Having traced the history of the case, the learned judge goes on to deal at paragraph 26 onwards with the application. In paragraph 26 he says that the grounds on which the application to strike out are made are two. It is said that it is an abuse of the process to allow this application to continue because of the time that has elapsed. The Law Society’s argument was that the court cannot now grant the relief which was sought under the appellant’s claim and the action should be stopped.[35]Having set out the applicable Civil Procedure Rule in paragraph 26, he went on to examine the case. In paragraph 28 he points out that the intervention procedure is to give a quick remedy to a solicitor who considers that the intervention in his practice is not warranted and who seeks to recover his files and his money:
“It is intended to be a summary process, not one that is measured in months but one that is measured in weeks.”

The judge went on to say:

“Here, we are nearly eighteen months after the application was first brought to the court and we are nowhere near a hearing at this stage. Of the 70 files, by reason of the lapse of time, only 2 have anything in them and there is no purpose in restoring those to Mr Adams because he could not, in any event, work on them because he has no practice at the moment because he has not supervised in accordance with his practising certificate.”
In paragraph 29 he goes on to say:
“I can see no prospect of the court granting the relief sought by Mr Adams.”
[36]HHJ Weeks said that the court would not grant the relief sought:
“because of the time that has elapsed and the changed circumstances”
. The judge reached the conclusion that the failure on the part of Mr Adams to comply with the various court orders was “quite inexcusable”. He then decided at paragraph 30 that there was no real prospect of success given the lapse of time.[37]In paragraph 31 and onwards he went on to analyse whether there was a compelling reason for the matter to proceed to trial. He then cites a number of decisions on the need for a speedy process. He cites one case in which Jacob J, as he then was, said: “I have to say that the lesson to be learned was not learned in this case. Delay of over three months at getting the evidence ready and then nine months for applying to have it served late makes these proceedings pointless. HHJ Weeks said that in the case which he was considering the action is now “pointless”.[38]He then deals with a number of submissions made by Mr Adams, all of which are now cited by him as grounds of appeal against the decision of the judge. Mr Adams had argued that it was important for this application to go to the trial as a means of restoring his reputation. As the judge in my view rightly pointed out, Mr Adams’s reputation would not be in issue at any trial.[39]In paragraph 41 the judge points out that the purpose of the procedure is to obtain an order to restore the current files to a solicitor. He goes on:
“In any event, Mr Adams is not in a position at the moment to seek further work. For the last five months he has not been practising as a solicitor and that is not a compelling reason why the case should be disposed of at trial.”
[40]At paragraph 42 he deals with an argument made by Mr Adams which he reiterates in his grounds of appeal: the issue of the propriety of the intervention will not be adjudicated on unless this matter goes to trial and Mr Adams has his “day in court”. The judge rejects that submission. He points out that as the courts have said before this procedure is a summary one for getting the files back. It is not a suitable procedure for establishing for whether or not an intervention was justified at the start. He went on to say what the court has to decide is whether or not the intervention should continue. That is the basic question which has to be decided. That did not form a compelling reason for a trial.[41]In paragraph 43 the judge deals with allegations which had been made by Mr Adams both before HHJ Weeks and repeated in the grounds of appeal, the skeleton argument and repeated in the correspondence which he has sent to this court. He alleges that the Law Society had been fraudulent and deceitful in that they had deliberately falsified parts of the report. The judge says this is not a reason for having a trial of this simple issue, namely whether or not there was reason to suspect dishonesty. The judge makes this clear in paragraph 44:
“As I have said several times in the course of this judgment, part 6 is a summary remedy for a solicitor to put an end to an intervention. It is not a suitable place for ventilating grievances about the conduct of the Law Society. All the more so because, in the proceedings he has started on by Part 8, there are usually no statements of case or defence. Quite often there is no cross-examination and the salient points have to be taken out of the witness statements. Such a procedure is wholly unsuitable for disputed issues of fact particularly where issues of the honesty and propriety of those who were charged with the serious matter of reporting on the conduct of solicitors is concerned. That is not any reason for having a trial.”
[42]In paragraph 45 he deals with an argument which again Mr Adams makes in his application for permission to appeal, and that is the issue of the European Convention of Human Rights. The judge held that these kind of proceedings had been authoritatively decided as not raising any breach of the European Convention. In paragraph 3 of his grounds of appeal at page 8 of the bundle he submits that there are two novel arguments which are not dealt with by the leading decision in Holder v The Law Society. He submits that the very low threshold imposes a reverse of the burden of proof and he submits that the intervention on the grounds of suspected dishonesty constitutes criminal proceedings. In my judgment, neither of those two arguments have any merit. It has clearly been established that this kind of procedure is a necessary way of protecting the public. The rationale for this kind of procedure is set out in the decision in Holder v The Law Society.[43]The judge then went on to deal with the issue of costs. Mr Adams has submitted that the costs of the intervention were in the region of £113,000 and therefore there should be a trial of the issue so that the issue of costs could then be resolved in his favour if he was successful in his claim against the Law Society. The judge rejected that argument in paragraph 48. It is said by Mr Adams in his skeleton argument that the judge misunderstood the issue of costs. He says that the judge understood that the costs had been incurred in the course of litigation. That, in my judgment, is not right. It is clear that paragraph 48 relates to the cost of the intervention.[44]In the document which is headed “Thoughts of Nigel Adams on Verdi” Mr Adams raises the issue of the relevance of the delay in progressing this application. In my judgment, the conclusion of the judge that the court would not now grant relief, having regard to the considerable passage of time, is unappealable. In my judgment there is no merit in any of the grounds. Mr Adams was able to develop fully the grounds he wished to develop before HHJ Weeks. HHJ Weeks did not accept those grounds. He gave cogent and unassailable reasons for rejecting them. I see nothing new in any of the arguments put forward by Mr Adams which could in any way undermine the conclusions reached by HHJ Weeks.[45]With that in mind I go back finally to consider the application for an adjournment. I am very mindful of the letter which has just arrived in from the Law Society leaving it to this court to decide the matter and stating, as I have indicated, that they did not raise an objection. I take the view that there are no merits in this application for permission. Mr Adams has been able to make full submissions to this court seeking permission to appeal the judgment of HHJ Weeks. I have considered all of those submissions carefully and I take the view that having regard to my view on the merits having regard to the whole history of these proceedings it would be wrong to grant any further adjournment. The application for an adjournment is refused as also the application for permission to appeal in the case of Adams v The Law Society[46]I now turn to the case which Mr Adams brought against the Bar Council Joint Tribunal, the General Council of the Bar and the Law Society of England and Wales. Sullivan J refused permission to apply for judicial review, as I have said, after having heard submissions from Mr Adams. I read from part of the judgment which will be found at page 18:
“This is a renewed application for permission to apply for judicial review of a decision of 19 November 2004 with reasons provided on 22 November 2004 Mr Christopher Palmer and Mr Andrew Lidyer acting as a ‘joint tribunal’ in relation to a dispute between the claimant and a barrister in relation to the barrister’s unpaid fees of £8,000 plus VAT. Prior to the hearing, the claimant, who has appeared before me in person, filed a lengthy witness statement, running to 61 paragraphs over 21 pages, explaining why he considered that an adjournment should be granted. In addition, the witness statement raised a number of other matters. “The claimant also produced, for the hearing this morning, a 4-page skeleton argument. Again, that dealt, in large measure, with various applications which the claimant wished to make, including an application for an adjournment and, indeed, an application for transfer of the claim to the Chancery Division. “I declined to allow the application for an adjournment, because a particular issue had been raised in the defendant’s statement of grounds which were received by the Administrative Court as long ago as the 21st March of this year. That issue, if correct, will be a complete answer to these proceedings. The statement of grounds produced, as part of a bundle of documents, a copy of the terms of work on which barristers offer their services to solicitors, and also exhibited copies of the joint tribunal standing orders for fee disputes with solicitors, and a copy of the agreement by which the dispute came to be referred to the joint tribunal. “The point made, in brief summary, in the defendant’s summary grounds was the decision of the joint tribunal was simply not a decision which, by its nature, was susceptible to judicial review. It is significant that, notwithstanding the length of the witness statement and the length of the claimant’s skeleton argument, that that matter was not addressed by him. I was, however, satisfied that he had had ample time in which to consider that matter and that he had had ample opportunity to prepare such arguments, as he wished, in order to answer it. “The short question is whether the decision of the joint tribunal was a decision of a public body acting as such.”
[47]The judge then refers to the White Book and refers in particular to a decision therein set out. He concluded that he was: “entirely satisfied that the joint tribunal is not a public body and that, even if it was it was, it is a body that is simply resolving a purely private law dispute between the claimant and the barrister concerned”.[48]The judge then sets out the terms on which barristers offer their services and points out that there was no evidence that the claimant attempted to exclude or vary those terms, although it was open to him to do so. He then sets out the terms of the scheme insofar as they deal with disputes. He sets out the claimant’s agreement to be bound by the tribunal procedure. He deals with the claimant’s argument that the proviso that there should be negotiations had not been complied with. Sullivan J says it was open to the claimant to raise the failure to comply with the proviso before the tribunal. He goes on to say that this is pre-eminently an example of a private law matter which is not susceptible to judicial review. Sullivan J then deals with an argument which Mr Adams has again raised in his grounds of appeal to this court, namely that he was forced to enter the agreement by the Law Society’s rules because if he did not he would lose his opportunity to challenge counsel’s fees. As to that argument, Sullivan J said:
“It seems to me that, if and insofar as there is any complaint there, it is a complaint against the Law Society’s rules, which are not challenged in these judicial review proceedings.”
[49]Sullivan J then deals with another argument again raised by Mr Adams before this court as to the effect of the European Convention on Human Rights. The judge points out that the Convention does not prevent the parties from entering into agreements for the payment of fees and for the resolution of disputes in the event of a challenge to fees. The right of the parties, he says, to choose to refer their disputes to experts or arbitrators does not in any way infringe their rights under the ECHR. There is then a reference to an argument about competition law.[50]The arguments which Mr Adams made unsuccessfully before Sullivan J are repeated in his submissions to this court. For my part I see no merit in those arguments at all for the reasons given by Sullivan J.[51]I therefore return again to the issue of the application for adjournment. In this case there is to my knowledge no letter from the respondents in this application for permission. I bear in mind that there is an obligation to pay money to a barrister, which I shall assume has not yet been met. In considering the issue of fairness to Mr Adams, I must also consider the issue of fairness to the barrister and to those who are formally respondents in this case.[52]Given the complete absence of any merits I take the view that I should refuse the adjournment. I also refuse the application for permission.

Order

Applications refused.

Cited in 1 later judgment