Baker, R (on the application of) v Hossack [2009] EWHC 2463 (Admin)

[2009] EWHC 2463 (Admin)Case No CO/9983/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 10th September 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE SILBER
Between
THE QUEEN ON THE APPLICATION OF BAKERClaimantv
Between
HOSSACKDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr B Bentley (instructed by Browne Jacobson LLP) appeared for ClaimantThe Defendant appeared as a litigant in person for in person
J U D G M E N T
[1]MR JUSTICE SILBER: Councillor Stephen Baker, who at the material time was a policy portfolio holder within Hull City Council, and Mr Eric Robinson, Corporate Director of Social Care for Staffordshire County Council, apply to set aside witness summonses issued on 27th August 2009 by Mrs Yvonne Hossack. She is a solicitor against whom disciplinary proceedings before the Solicitors Disciplinary Tribunal are due to commence on 14th September 2009. She is disputing them strongly.[2]In their applications to set aside the summonses, Councillor Baker and Mr Robinson (who I will refer to as "the applicants") contend, first, that the summonses were not issued in good faith, second, that they are unable to provide material evidence, and third, that the request for their evidence is speculative and/or oppressive. At the hearing Mr Benjamin Bentley, who appeared on their behalf, made the sole submission that neither of them can give any material or relevant evidence.[3]The background to the disciplinary proceedings is that complaints were made against Mrs Hossack by Browne Jacobson, a firm of solicitors who were acting for Staffordshire County Council, Hull County Council and Northamptonshire County Council in respect of proceedings which had been brought against them by Mrs Hossack on behalf of her clients. There are a number of witnesses for the Disciplinary Tribunal, including a solicitor employed by Browne Jacobson and an in-house lawyer.[4]The relevance of the summonses against the two applicants relate to the complaints made by the Council at which Mr Robinson is employed and Councillor Baker is an elected member. I now turn to the complaints relating to them.[5]In respect of Staffordshire County Council, a claim was brought by Mrs Hossack in March 2007 seeking to judicially review a decision of that Council to close care homes as part of its "changing lives" programme. She acted for a number of people who would have been affected by the closure of the care homes. Mr Kenneth Parker QC, then sitting as a Deputy High Court Judge, refused to grant permission to the claimants in that action to proceed to a judicial review on 23rd March 2007. He concluded that the case for the claimant in that case, which was that a decision had been reached without lawful consultation, was unarguable because the Council had made only an "in principle" decision to close the home and then it was committed to further consultation.[6]Three days later, on Monday 26th March, Mrs Hossack issued a new claim for judicial review against Staffordshire County Council relating to the same care home on behalf of another client. The matter came before Wyn Williams J, who said that the claim before him was in fact identical to that for which permission had been refused by Mr Parker QC. Although Mrs Hossack attempted to argue that the situation had changed and adduced evidence to show that was the case, Wyn Williams J was unpersuaded and he refused to grant permission for judicial review. He also refused leave to appeal his decision.[7]Mrs Hossack then sought permission from the Court of Appeal to appeal the refusal of permission by Wyn Williams J. Permission was refused on paper by Sir Henry Brooke, sitting as an additional member of the Court of Appeal. Mrs Hossack renewed her application. It was decided by a division of the Court of Appeal comprising Moses LJ and Moore-Bick LJ on 4th July 2009. They too refused permission to appeal the decision of Wyn Williams J and endorsed his decision.[8]In the meantime, Staffordshire County Council had made an application to Wyn Williams J for an order for wasted costs against Mrs Hossack personally, on the basis that she had acted negligibly and unreasonably in bringing the second case which was identical to the first one which had come before Mr Parker QC. The application was heard on 23rd August 2007 and judgment was reserved.[9]It was handed down on 26th October 2007 with the neutral citation number [2007] EWHC 2441 Admin. In it, Wyn Williams J stated in paragraph 8:
"For reasons which will become apparent I do not propose to dwell in any detail upon whether or not the Claimant's Solicitor Advocate engaged in behaviour which can properly be regarded as improper, unreasonable and/or negligent. I am completely satisfied that her behaviour throughout the proceedings before me was unreasonable and negligent, at the very least. I reach that conclusion for the reasons which are advanced in the written submissions put in on behalf of the Defendant and elucidated orally by Mr Knafler. Nothing that Mrs Hossack has written or said persuades me that the thrust of Mr Knafler's points should not be accepted. It short these proceedings were completely unnecessary. They were doomed to failure and a reasonably competent solicitor should have known as much. I accept that Mrs Hossack was the driving force behind the proceedings although I do not go so far as to say that it was her campaign and that she stepped outside the role of a legal representative. Had I been minded to make an order for wasted costs on the basis of those findings I would, of course, have set out in my own way in much greater detail the reasons in support. I have reached the conclusion, however, that despite my finding that Mrs Hossack behaved unreasonably and negligently I should not make an order against her."
I should add that the reason he did not make an order against her was because, as he explained later in his judgment, that it would have caused a significant risk of rendering Mrs Hossack bankrupt and he thought that that was a disproportionate consequence of unreasonable and negligent conduct.[10]Mrs Hossack explained that one of the allegations that had been made during that hearing in front of Wyn Williams J is that she had been involved in some campaign and that that allegation had not been accepted because Wyn Williams J said in the passage I quoted "I do not go so far as to say that it was her campaign and that she stepped outside the role of a legal representative".[11]There were also complaints made by Hull City Council. They included a complaint that Mrs Hossack brought a judicial review claim relating to residents at Rokeby House, but on 30th November 2007 His Honour Judge Gilbart QC refused interim relief as the papers filed did not disclose even "a just arguable claim for judicial review".[12]On 19th December 2007 Mrs Hossack made a further application for urgent interim relief to prevent the transfer of three incapacitated adults from Rokeby House. This was dismissed by Stanley Burnton J (as he then was) as an inappropriate application. He observed that:
"This in substance is an inadmissible appeal against the order of His Honour Judge Gilbart QC."
Mrs Hossack then made a further application by letter which was refused on 21st December 2007 by Wyn Williams J who observed:
"The reality is that this claim has no prospect of success."
[13]On 18th February 2008 there was the beginning of a further matter of complaint against Mrs Hossack, because she indicated that the Legal Services Commission had imposed a condition on the then claimant's public funding certificate, that counsel's opinion on merit should be obtained, that a negative counsel's opinion had been obtained, that the claimant's public funding had been discharged and that she would enter into a consent order withdrawing proceedings. Mrs Hossack informed counsel that she had been instructed by another Rokeby resident, Mrs Windass, and that she had herself personally granted Mrs Windass public funding using her devolved powers. It was proposed by Mrs Hossack that Mrs Windass be substituted for the original claimant, Hilda Milsom. No application was submitted and no claim form was produced, but the matter came before King J on 28th February 2008 who granted permission to apply for judicial review. One of the matters of concern to the Disciplinary Tribunal or the prosecuting authority of the Law Society is that Mrs Hossack felt able to grant public funding to the claimant using her devolved powers immediately following a negative counsel's opinion, three judicial statements that a case had no legal merit, as well as the discharge of a public funding certificate of another resident with an identical case.[14]A third allegation relating to Mrs Hossack's dealings with Hull relates to a claim that she brought on 19th December 2007 in circumstances where she was not instructed by the three adults. The adults were represented by an Independent Mental Capacity Advocate and therefore it is said against her that it was inappropriate for her to act as she did. Subsequently, by letter of 11th September 2008, Mrs Hossack provided a detailed response and, according to the supplemental statement that has been put in on behalf of the Solicitors Regulation Authority, Mrs Hossack conceded that she was not instructed by the three individuals.[15]The substantive complaints brought against Mrs Hossack were, first, that she accepted and acted on instructions from a third party without seeking clarification of the position directly from her clients; secondly, she provided confidential information to a third party without the consent of her clients; and third, she failed to respond substantively to enquiries from the Law Society and Solicitors Regulation Authority. That third allegation is no longer pursued, but there are two additional allegations made, of which the first was that she had acted in breach of the rules by disclosing confidential information to a third party and that she also broke various rules in relation to certain litigation matters.[16]Mrs Hossack bases her application for witness summonses against the applicants on allegations that the case against her on many matters is supported by evidence from two solicitors, Ms Hughes of Browne Jacobson and Ms Bird. She says of that in her skeleton argument that Ms Hughes' statement contains allegations about which she has no direct knowledge and/or of which she was not the author so she cannot be cross-examined on them. It is also that the Hull allegations contain matters that Ms Hughes is not a witness to and that Ms Bird said the complaints made were not hers but those of the client authority and she was not the decision-maker.[17]The basis of issuing the summons against the applicant was explained in paragraph 21 of Mrs Hossack's witness statement in this way:
"Both Eric Robinson and Cllr Stephen Baker took part in the decision to refer my conduct to the SRA [Solicitors Regulation Authority]. If they know nothing there was no basis upon which they could have taken part in those decisions."
It is true that they were both involved, because Mrs Hossack made a request under the Freedom of Information legislation as to how Staffordshire and Hull made their decisions to make complaints about her to the Solicitors Disciplinary Body. Mrs Hossack asked who gave instructions to put forward the complaint and the response was:
"The instruction was issued by the Legal Services Manager (Shared Support), Lynne Bird after consultation with the Head of Community Care Services, the Chief Executive and the portfolio holder for health and voluntary services."
It is clear from the website that at the relevant time the portfolio holder for health and voluntary services in Hull was Councillor Baker.[18]Mrs Hossack also made an enquiry of Staffordshire. She asked them whether the decision to make the complaint was taken to a democratically elected committee and whether all members of the client authorities were given the opportunity to input to the decision to complain. The response was: "The decision was taken by the Corporate Director of Social Care and Health, Eric Robinson, in conjunction with the Staffordshire County Council Legal Services Unit. A copy of the email instruction is withheld under Schedule 7(10) of the Data Protection Act (Legal Professional Privilege). There was no requirement for the decision to be taken to a committee or for members to input into the decision.[19]It is noteworthy that in her witness statement Mrs Hossack explains that she had written to the Solicitors Regulation Authority and asked why the solicitors instructed by Hull, Staffordshire and Northampstonshire County Council gave evidence against her as witnesses in breach of the Law Society's code for advocacy, but no response has been received and they proceed regardless. She goes on to say that Councillor Baker instructed Browne Jacobson Solicitors in this matter and that:
"It is crucial for me to have the opportunity to have Mr Robinson [sic] available to me as a witness in court in order to extract from him exactly what his reasons were for making this complaint and to allow me the opportunity to defend myself. I cannot defend myself by cross-examining the solicitor who has been instructed in this matter as they cannot give the opinions or the views of the person who has entered a complaint and I cannot have the opportunity to disprove their evidence . . . "
[20]In my view, the reasons of the applicants for making the complaints are of no relevance to the determination of the issue in front of the Solicitors Disciplinary Tribunal. Their task is to ascertain whether Mrs Hossack acted unprofessionally and in breach of the rules as contended.[21]In determining that issue it is irrelevant to know what the reasons were for making the complaint, because these are hard matters of fact. It would mean looking at the evidence and reaching conclusions in respect of them. The motives or reasoning of those who formed part of the chain in authorising the complaints to be made is not of assistance. In addition, it is not suggested that either applicant was involved in any way with the litigation which is the subject matter of the complaints, or has any knowledge of it other than what they were told by others. In other words, they cannot comment on the truth of the allegations made against Mrs Hossack.[22]I should also add that Mrs Hossack contends that there are gaps in the case against her and that is why she wishes these two applicants to give evidence. If there are gaps in the case against her, that would be to her advantage.[23]I therefore have concluded that I should set aside the witness orders in the light of the evidence and the allegations as they are now. Obviously if they change during the course of the proceedings then matters might be different. I am not giving any encouragement at all for that course to be taken.[24]MR BENTLEY: Thank you, my Lord.