“Ms Khan is cognitively alert to understand the court proceedings and can put her views, opinions and wishes in her defence. However, she does not believe that the accusations are morally right. She expressed willingness to accept the outcome, particularly after spending 3 months in prison. She came across as a person, who has over-valued and odd ideas about morality and values.”
“Ms Khan came across as a person who has a superficial understanding of the matter and seriousness of the proceedings. Ms Khan strongly believes that she acted upon good faith and followed on the path of standing up for her clients.”
“100. The criteria are on the balance of priorities to be capable of: To understand the charges 101. Ms Khan does not have a clear and thorough understanding of the charges levelled against her. Ms Khan does not fully understand the nature and the severity of the charges. Deciding whether to plead guilty or not guilty 102. Ms Khan does understand what pleading guilty and not guilty means. Ms Khan does understand implications of being found guilty of the offence and that she might go to prison. To give evidence in Ms Khan’s own defence: 103. Ms Khan does understand the need for evidence but could not provide with any relevant opinion or views in her defence. To instruct her solicitor and counsel: 104. In my opinion, Ms Khan cannot instruct her solicitors. To be able to challenge a juror: 105. Since Ms Khan does not have a reasonable understanding of the charges and her actions, she cannot challenge the jurors meaningfully and effectively. To follow the course of proceedings 106. Ms Khan can follow the court proceedings as her attention and concentration is good. However, she may not accurately comprehend the discussion. 107. In my opinion, Ms Khan is not fit to plead and stand trial.”
“It is documented that she was reporting stress in November and Dec 2011. It is very much possible that Ms Khan had some signs, as being described, as a part of ‘Autistic Burnout’. However, as mentioned, it is a rather new concept, still being described and researched and it is not possible to comment on the severity of such, on her ability to being fit to plead, engage and instruct her team for the trial on 17 Dec 202[1]. Autism itself, is not enough for defendants to become unfit to plead, engage or instruct.”
“Although the test for mental capacity under the 2005 Act is different from the Pritchard test, I accept that at a high level of generality they are directed to the same concern and that if I accepted Dr Gupta’s evidence without qualification and found that Ms Khan was unfit to plead for the purposes of criminal proceedings, then this would be a powerful factor in deciding whether she lacked capacity for the purposes of the 2005 Act. I also accept that this would be a strong reason for refusing to permit the Committal Application to proceed.”
“2 People who lack capacity (1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. … (4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.”
“3 Inability to make decisions (1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable– (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means). … (4) The information relevant to a decision includes information about the reasonably foreseeable consequences of– (a) deciding one way or another, or (b) failing to make the decision.” (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means). (a) deciding one way or another, or (b) failing to make the decision.”
“1 The principles (1) The following principles apply for the purposes of this Act. (2) A person must be assumed to have capacity unless it is established that he lacks capacity. … (4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.”
“If there is some evidence that a litigant is unfit to attend, in particular if there is evidence that on medical grounds the litigant has been advised by a qualified person not to attend, but the tribunal or court has doubts as to whether the evidence is genuine or sufficient, the tribunal or court has a discretion whether or not to give a direction such as would enable the doubts to be resolved. Thus, one possibility is to direct that further evidence be provided promptly. Another is that the party seeking the adjournment should be invited to authorise the legal representatives for the other side to have access to the doctor giving the advice in question. The advocates on both sides can do their part in assisting the tribunal faced with such a problem to achieve a just result. I do not say that a tribunal or court necessarily makes any error of law in not taking such steps. All must depend on the particular circumstances of the case. I make these comments in recognition of the fact that applications for an adjournment on the basis of a medical certificate may present difficult problems requiring practical solutions if justice is to be achieved.”
“…where medical evidence is produced which is deficient in some respect, it may be appropriate to give consideration to a short adjournment in order to enable a litigant to make good such deficiency.”
“No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case).”
“A court or tribunal is entitled to weigh up the medical evidence against all of the other material available to it.”
“The real issue for me to decide is whether I attribute sufficient weight to those views to direct further evidence or cross-examination on the question whether Ms Khan lacks mental capacity. I have reached the conclusion that the evidence which Dr Gupta has given in Gupta 2, ¶101 to ¶106 does not bear sufficient weight to take that course for the following reasons: (1) Section 1(2) of the 2005 Act provides that a person must be assumed to have capacity unless it is established that she lacks capacity. This is expressed as a principle not a legal or evidential presumption. As a matter of principle, therefore, I must assume that Ms Khan has capacity until or unless Ms Khan or those appearing on her behalf persuade me otherwise. (2) The question whether Ms Khan lacks capacity must be decided on the balance of probabilities. I am not satisfied that it is more probable than not on the basis of Dr Gupta’s evidence that Ms Khan is either unfit to plead or lacks capacity. Far from it, the overwhelming evidence before the Court is that Ms Khan has capacity to conduct legal proceedings on her own account or to instruct solicitors and counsel to do so. Mr Bogle has not, therefore, discharged the burden of proving on a balance of probabilities that Ms Khan lacks capacity. (3) But in any event, I am not satisfied that Mr Bogle has any real prospect of persuading me to accept the conclusions in Gupta 2, ¶101 to ¶106 even after further expert evidence and cross-examination and, in particular, to revise the conclusion which I reached in the Liability Judgment at [119]. The history of the Committal Application and the associated proceedings and Ms Khan’s personal participation in them throughout satisfies me that I should attribute very little weight to those conclusions. I am fully prepared to accept that Ms Khan had serious medical and emotional problems after the Liability Judgment and I would not wish to downplay them. But they did not prevent her making Khan 1 to 4, Khan WS1 or continuing to participate in costs proceedings (above). (4) In reaching this conclusion, I also take into account her conduct at the Committal Application. I give one example. Ms Khan attended both days of the hearing. When Mr Ahlquist had fully opened the application, I gave Mr Bogle an opportunity to take instructions from Ms Khan on whether to give evidence and submit to cross-examination. After about 20 minutes, I returned to Court and Mr Bogle informed me that Ms Khan had elected not to give evidence but to rely on Khan 1 to Khan 4. I have no doubt that Ms Khan made a fully informed decision not to give evidence and was able to discuss and communicate that decision to her solicitors and counsel. In my judgment, she has no real prospect of persuading the Court that she lacked capacity when she made that decision.”
“If she was suffering from the long-standing issues which Dr Gupta has identified at the time, they did not impair her ability to comprehend and participate fully in legal proceedings even to the extent to appearing before the tribunal herself.”
“The starting point when striking the balance in this case is the duty upon a court hearing committal proceedings to ensure that the accused person is made aware that they are not obliged to give evidence and also warned that adverse consequences or inferences may arise from exercising the right to silence. Those messages may indeed contain a tension, but what matters is that the choice of how to proceed belongs to the litigant and not to the other party or to the court. This is of particular importance when the litigant is unrepresented, and it does not apply any the less to the seasoned litigant in person, or to the litigant who appears eager to enter the witness box. The last mentioned individual may be the one who most needs to be reminded of his or her rights.”
“In making the findings in this Section III of my judgment, I have not found it necessary to rely on any inference drawn from the fact that Ms Khan elected not to give evidence.” (The findings here referred to were all the factual findings which led to his conclusions on liability). It is true that he went on to say that almost all the issues which he had considered called for explanations, and continued: “Like Miles J in Hussain I can only assume that Ms Khan chose not to give evidence because she recognised that she was unable to give evidence which exonerated her and that cross-examination would have further damaged her case. This therefore supports and strengthens the conclusions which I have already reached.”
“Further or alternatively, in her capacity as a director of the Second Defendant and/or the Third Defendant, the First Defendant has wilfully failed to take reasonable steps to ensure that the Second Defendant and/or the Third Defendant complied with paragraph 1 and/or paragraph 5 of the Order.”
“Mr Ahlquist: …may I just pick up one point in your judgment, My Lord, which I think also is a point raised in my learned friend’s skeleton about the role of the second and third defendants. They are not respondents to this application. Mr Justice Leech: No, they are not, but [Ms] Khan is being – the committal application is made against her in her capacity as a director of the second and third defendants. Mr Ahlquist: Exactly so, my Lord, in addition to her personal capacity. Mr Justice Leech: in addition to her personal capacity. Mr Ahlquist: I just thought I should make it clear that the second and third defendants are not respondents, my Lord. Mr Justice Leech: You are quite right to pick me up on that. I understand the position to be that she faces committal on the grounds that she has committed breaches of the order in her capacity as a director of both defendants, both of the two companies. Mr Ahlquist: Yes, my Lord. I suppose I should say committed a breach of the order personally and wilfully procured a breach. Mr Justice Leech: They are named as defendants in the application notice. Mr Ahlquist: They are defendants to the proceedings so they are in [the] heading, but not as respondents, my Lord.”
“121. To find both the Firm and JFP liable for contempt of court, it is also necessary for the SRA to satisfy me that Ms Khan wilfully failed to ensure that the Firm and JFP took reasonable steps to comply with the Order. Ms Khan is the sole director of the Firm. She is one of two directors of JFP the other being her brother Yusuf. There is no evidence that she was relying on him (or anybody else) to comply with paragraphs 1 and 5 of the Miles Order on behalf of either entity or that he (or anybody else) took any steps to do so. Ms Khan does not make such a suggestion in any of her four affidavits and he has not given evidence himself. I am satisfied, therefore, that Ms Khan did not believe that some other director, officer or employee of either the Firm or JFP was taking reasonable steps to comply with the Miles Order on their behalf. 122. I have found that Ms Khan committed a number of breaches of paragraphs 1 and 5 to the criminal standard. I have also found that she deliberately failed to comply with the Order in her personal capacity and attempted to mislead the Court into accepting that she had. In the light of those findings, I also find beyond reasonable doubt that she took a conscious decision not to comply with the Miles Order herself or to ensure that the Firm and JFP complied with it knowing that this would place them in breach of the Order or not caring whether it did or not.”
“124. I find that Ms Khan and the Firm are liable for contempt of court, namely, that in breach of paragraph 1 of the Miles Order they failed by 4 pm on5 May 2022 to produce or deliver up to Mr Owen the Ledger, the Bank Statements and the documents from the Humpston files which Janes disclosed to Capsticks on30 January 2023 . 125. I also find that all three Respondents are liable for contempt of court, namely, that in breach of paragraph 1 of the Miles Order they failed by 4 pm on5 May 2022 to produce or deliver up to Mr Owen both the Beynon files and Humpston Files 051 and 051-2 and that they remain in breach of paragraph 1 of the Order by failing to do so. 126. I also find that Ms Khan is liable for contempt of court, namely, that in breach of paragraph 5 of the Miles Order she failed to serve on Mr Owen a signed witness statement with a statement of truth by 4 pm explaining the steps which she had taken to comply with paragraph 1, why she had been unable to do so and when she would be able to do so and that in breach of paragraph 5 she failed to give any of the required explanations until30 November 2022 . 127. Finally, I also find that Ms Khan is liable for contempt of court, namely, that in breach of paragraph 5 of the Miles Order she has still failed to serve such a witness statement on Mr Owen explaining what steps she has taken to produce or deliver up electronic documents and files created, stored or held by the Firm and also the client files of the following clients (whether hard copy or soft copy): Mrs Blackwell, Mr Baxter, Mr Shillito, Mr Mahoney, Mr and Mrs Coulthard, Mr Martin, Mr Corbridge and Mr Naylor.”
“AND UPON the Court being satisfied for the reasons set out in the reserved judgment dated14 February 2023 (the “Liability Judgment”) that the Respondents have committed the following breaches of the Order in contempt of court (together the “Contempts”), namely, that:…” followed by four paragraphs which replicated the findings in [124]-[127] of the Liability Judgment, numbering them Contempts 1 to 4, so that for example Contempt 1 was in the form: “In breach of Paragraph 1 of the Order the First and Second Respondents failed by 4pm on5 May 2022 to produce or deliver up to the Agent all Listed Items...”
“The second reason which Ms Khan gave for making this application was that the Appellant’s Notice has only been submitted on her behalf and not on behalf of the Second and Third Defendants. She submits therefore that even if her appeal is completely successful and she succeeds in overturning both the liability and the sanction judgments the Committal Order will stand in relation to both the costs orders and the recital in relation to the Second and Third Defendants JFP and the Firm.”
“Indeed, Ms Khan posed the following question as the essential question which I had to answer this morning: “Was the intention to make a costs order against the second or third defendant, or was it a mistake?”
“(6) A party may request a decision of a single judge made without a hearing (other than a decision made on a review under paragraph (5) and a decision determining an application for permission to appeal) to be reconsidered, and— (a) the reconsideration will be determined by the same or another judge on paper without an oral hearing; except that (b) the judge determining the reconsideration on paper may direct that the reconsideration be determined at an oral hearing, and must so direct if the judge is of the opinion that the reconsideration cannot be fairly determined on paper without an oral hearing.”
“23.8 Applications which may be dealt with without a hearing The court may deal with an application without a hearing if – (a) the parties agree as to the terms of the order sought; (b) the parties agree that the court should dispose of the application without a hearing, or (c) the court does not consider that a hearing would be appropriate.”
“Other applications considered without a hearing … 11.2 Where rule 23.8(c) applies the court will treat the application as if it were proposing to make an order on its own initiative.”
“Where r.23.8(c) applies the court will treat the application as if it were proposing to make an order on its own initiative. The effect of para.11.2 here is to bring into play r.3.3 (Court’s power to make order of its own initiative). The particular significance of this is that, where the court makes an order on an application, having dealt with it without a hearing on the basis of r.23.8(c), the right to apply to the court to have the order set aside, varied or stayed conferred by r.3.3(5) accrues to a party affected by the order.”