Henry, R (on the application of) v The Bar Standards Board [2016] EWHC 2343 (Admin)

[2016] EWHC 2343 (Admin)Case No CO/2196/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/09/2016
Before
Mrs Justice Whipple
Between
The Queen (oao Michael Henry)ClaimantThe Bar Standards BoardDefendant
Mr Laurent Sykes QC (instructed by Bar Direct Access Scheme) for ClaimantMr Richard Wilkins (instructed by BLM Law) for DefendantHearing Hearing dates: 13 September 2016
Judgment Approved
[1]I heard this renewed application for permission on the afternoon of 13 September 2016. Mr Laurent Sykes QC appeared for Mr Henry, the Claimant. The Bar Standards Board, Defendant, was not formally represented in court, although Mr Wilkins, solicitor at BLM which firm acts for the Bar Standards Board, was present in court and made brief submissions at the end of the hearing in relation to ancillary matters.[2]I told Mr Henry at the end of the hearing that I was dismissing his renewed application for permission for judicial review because I considered his case to be unarguable. I also told him that I was minded to conclude that the application was also totally without merit, which meant that I was compelled to consider whether I should make a civil restraint order against him, (noting the effect of CPR 23.12). Both Mr Henry (by Mr Sykes) and Mr Wilkins for the BSB asked for permission to lodge written submissions on the issue of a civil restraint order, so I adjourned the matter to enable them to do so. I received short written submissions from each of them, and a witness statement from Mr Henry dated 14 September 2016, which I have read.[3]These are my reasons for dismissing the application for permission for judicial review, and my conclusion on the issue of whether to make a civil restraint order against Mr Henry.

Background

[4]The complaint arises out of proceedings in the Chancery Division heard by Sarah Asplin QC (as she was, sitting as a deputy high court judge) over 7 days in May 2012, judgment reference [2012] EWHC 2105 (Ch). The claim was brought by Quick Draw Ltd. Quick Draw had lent money to the first Defendant, Global Live Events LLP (“GLE”), in relation to a Michael Jackson tribute concert at the Millennium Stadium in Cardiff in October 2011. GLE was in administration by the time of the trial. Mr Henry was also a defendant. Mr Henry is a solicitor specialising in entertainment and intellectual property law. He was responsible for all the contractual documents drawn up to evidence the loan (see [5] of the Judgment). He was sued as a co-defendant. Also sued were Mr Hunt and a company called Iambic Media Ltd. This I will refer to as the “2012 action”.[5]Quick Draw succeeded in the 2012 action. The Judge found that the conduct of Mr Henry and Mr Hunt fell short of that expected of ordinary honest individuals with their knowledge and experience and that they were both guilty of a dishonest assistance in breach of trust by GLE (see [202] of the Judgment). Mr Henry sought permission to appeal to the Court of Appeal but he was refused permission and that application was certified totally without merit (the refusing judge was Lloyd LJ).[6]In the 2012 action, Quick Draw was represented by two barristers and Wiggin LLP, solicitors. The Claimant alleges that Quick Draw’s legal team made false representations in the course of those proceedings. The Claimant referred the two barristers and the solicitors to their respective professional bodies. So far as the complaints against the barristers are concerned, after some earlier exchanges and litigation which I shall refer to below, the Bar Standards Board (“BSB”) refused to refer the matter for disciplinary action. By this action, Mr Henry seeks to challenge that refusal. The refusal was dated 22 January 2016, by way of letter in materially identical terms for each barrister.

The decision under challenge

[7]Mr Henry originally made a large number of complaints against the two barristers to the BSB. Those complaints were considered by the Professional Conduct Committee (“PCC”) of the BSB. The PCC split those complaints into two tranches. The first tranche related to complaints 1-6 only. (It dealt separately with complaints 7-337, its decision relating to those latter complaints being the subject of separate proceedings.) In its letters dated 22 January 2016, the PCC concluded that complaints 1-6 did not reveal a potential breach of the code of conduct, in light of which the PCC decided that no further steps should be taken in relation to those complaints which were therefore dismissed.[8]In the decision letter, the reasons for the PCC’s decision were summarised as follows:
“Your complaints 1-6 are in substance that [each of the two barristers] ‘falsely represented to the judge that the administrators of GLE had consented to the terms of the draft order’. If the barrister did not misrepresent the position then no breach of the code of conduct can have taken place. You were not acting for the administrators and nor was the barrister. The BSB contacted the administrators of GLE. They have never complained that their position was misrepresented to the court and they were provided with a copy of the order dated 30 July 2012 after it was made. They commented on the Order (through their solicitors Charles Russell LLP) by letter dated 12 August 2012 to Wiggin LLP and did not say their position was misrepresented in the Order or that they had not consented to its terms. In any event they have made no application to set aside or vary the order in the subsequent three years on the basis that they had not consented to it or for any other reason. In those circumstances the committee concluded that there was no sufficient evidence that the barrister made false statements to the court and, accordingly, no sufficient evidence that his conduct constituted a breach of paragraph 301(a) of the Code of Conduct (8th Edition).”

Extension of Time for Grounds

[9]The decisions under challenge were made on 22 January 2016. Mr Henry issued his claim form seeking judicial review on 21 April 2016, the very last day of the three month “window” for bringing a JR. However, that claim form was incomplete, unaccompanied by any grounds or witness evidence. At section 10 of the claim form Mr Henry indicated a number of documents which he expected to be apply to provide by 9 May 2016, namely the statement of facts and grounds, the witness statement in support of the application, relevant statutory material, and the list of essential documents for advanced reading. The reason given in the claim form for the non-availability of these documents was that his counsel was at the time appearing in the Court of Appeal on his behalf in connection with another matter and lacked sufficient time to reconsider all the evidence and draft and approve the appropriate documentation to accompany this claim form. It was said that counsel would have finished in the Court of Appeal at the close of 22 April 2016, so that the remaining documents would be filed within 14 days from the next working day, namely 9 May 2016.[10]In the event those documents were filed at Court on 16 May 2016 accompanied by an application for an extension of time and witness statement explaining the delay. They were sent to Bar Standards Board on a date unknown, but (so Mr Henry told me) by 23 May 2016. In the meanwhile, the Bar Standards Board had lodged its acknowledgment of service on 20 May 2016, complaining that it had not had the benefit of seeing the full case against it. The acknowledgement of service answered the very summary case set out in outline only in the claim form but did not deal with any of the detail of the case as it is now advanced.[11]The papers came before Langstaff J for permission. On 20 July 2016 he refused the application for extension of time and also refused permission. His reason for refusing the extension of time was (Langstaff J’s emphasis):
“1. Proceedings by way of judicial review must be brought promptly and in any event within three months, three months is a long-stop limit: delay within that period gives grounds in itself for refusing permission. It is thus incumbent on the litigant whose claim is not submitted until the last day of that period to use the time within that period to best advantage so as to avoid or minimise further delay, and if for good reason that is impossible to act promptly thereafter. I do not consider that he has done either, and though the extension sought is not long, decline to give it.”
[12]The Judge then considered the outline grounds in the Claim Form, which were the only grounds properly before him, and refused permission. He said:
“2. The grounds as lodged by 21 April 2016 are hopelessly unspecific: I note, too, that the three grounds then relied on are materially different from those for which an extension of time is sought, such that this therefore amounts to an attempt to put in grounds for review almost four months after a decision, and not a mere detailed clarification of grounds that already were advanced. 3. The grounds as originally advanced do not disclose any error of law, since they are so lacking in particularity.”
[13]Before me, Mr Sykes has renewed the application for an extension of time and given a fuller explanation for the delay. I have the benefit of a witness statement filed by Mr Wilkins objecting to the extension of time (the statement is dated 16 June 2014, but that must be a mistake and I take it that the statement was filed in June 2016). I have also had the benefit of a more detailed explanation contained in Mr Henry’s notice of renewal dated 28 July 2016 (the modest delay in applying to renew has been explained and I am content that it was, in fact, filed in time). Based on the documents before me, I accept that Mr Henry was engaged in litigation in the Court of Appeal at the time, he did not have a solicitor acting for him, that his own time and resources are finite, and that his counsel was busy on the other case. I have considered the application by reference to the principles set out in Denton v TH White Ltd [2014] EWCA Civ 906, even though the application is not advanced in terms as one for relief from sanctions (noting R (Kigan) v SSHD [2015] EWCA Civ 1286 which suggests that all such applications should be determined according to the Denton criteria). I conclude that(1) the delay was significant in context, although it was not at the most serious end of matters which come before this Court. Mr Henry delayed by some weeks in putting before the Court and the BSB his full grounds and evidence in support. I acknowledge(2) that there is prejudice to BSB if I allow the extension of time, because that is (in effect) to allow Mr Henry to argue a different case from that which was intimated in the outline claim form. But I am satisfied that the prejudice in this case can be met by a suitable costs order, and is in context insubstantial. As it happens, the BSB is familiar with the arguments now raised and has been able to respond to them in advance of today’s hearing. I conclude that(3) in all the circumstances of the case, it is appropriate to extend time, and I do so. The prejudice can be addressed by a suitable costs order, the default was not all that serious (noting that Mr Henry did issue his claim form in time), and the consequence of refusing an extension of time is grave for Mr Henry who will in effect be unable to argue his case, the meat of which is contained in the late-filed documents. In all the circumstances, an extension is appropriate.[14]That deals with Mr Henry’s three applications (13 May 2016, 6 September 2016 and 12 September 2016).

Grounds for seeking JR

[15]Mr Sykes took me through the key aspects of Mr Henry’s complaints relating to the two barristers. The paperwork which has accumulated in this application for JR, even though permission is yet to be granted in it, is extensive. I will summarise what I understand to be the main features of Mr Henry’s complaints.[16]There are four grounds. The first is the mainstay of Mr Henry’s case. He argues that the BSB “wrongly considered that the administrator had consented to the order (as set out in the recitals to the order) made by the Judge, when it had not” [para 3(a) of the Claimant’s Grounds]. This is a challenge to the passage in the PCC’s decision letter - in the middle of the paragraph of that letter which I have cited above – which states that “they [ie GLE’s administrators] did not say … that they had not consented to its terms [ie the terms of the order dated 30 July 2012]”. Mr Henry argues that this is an assertion that the administrators had consented to the order, but that such a statement (or understanding) would be wrong in fact because the administrators had not consented to the order.[17]Mr Henry’s assertion that the administrators had not consented to the order is heavily based on the letter written by Charles Russell 10 August 2012 to Wiggin LLP, which firm acted for Quick Draw. Paragraph 1 of that letter stated as follows:
“As you are aware, the Joint Administrators consented to the continuation of the proceedings pursuant to paragraph 43(6)(a) of Schedule B1 to the Insolvency Act 1986 (Schedule B1) as confirmed in your letter dated 28 May 2012. This was mainly given the fact that the trial was due to start that week and the Joint Administrators wished to assist QD to the extent that they could. It appears that the provisions of the Order appear to allow for the enforcement of QD’s security. As you will be aware under paragraph 43(2) of Schedule B1 no step may be taken to enforce security over the company’s property with [sic] leave of the court or the consent of the administrators. In this instance there was no request for consent and there has not been an application to Court (as far as we are aware) for consent (in which case the court would be obliged to undertake the ‘balancing exercise’ in accordance with the provisions of Re Atlantic Computers Systems PLC [1992] Ch 505). In light of this, we would be grateful if you would let us have your thoughts in relation to this.”
[18]It is necessary to turn to the terms of the draft order on which Charles Russell was commenting. That order had been drawn up by the two barristers and submitted to the court following receipt of the draft judgment. Recital 3 to that draft order recorded that “Upon the first defendant consenting (through its administrator) to the orders below relating to it”. The order then provided for the loan to be repaid by GLE to Quick Draw, and for a number of other matters, including a declaration that Quick Draw was the sole proprietor of copyright in the “Works” (as defined) including all film and sound recordings at the concert. That order was circulated in draft on 27 July 2012 and sealed on 30 July 2012.[19]Mr Henry argues that the effect of the order was to seek to prioritise Quick Draw’s rights as a creditor above the rights of other creditors – and relies on the Charles Russell letter in support of this assertion. He argues that the barristers must have known that the administrators had not consented to Quick Draw having this sort of “super-security”, and so, he says, recital 3 is indicative, or at least suggestive of, a dishonest intent to mislead the Court. There is, he says, a clear case requiring investigation and disciplinary action.[20]The answer to this point is given by the BSB in their brief submissions prepared for the renewal hearing (noting that their acknowledgement of service had not addressed Mr Henry’s full grounds, for reasons I have outlined above). The BSB refers me to the Case Examiner’s Report which was before the PCC when it made its decision(s) on 22 January 2016. That report in turn sets out the barristers’ answers to the suggestion that they had each sought to mislead the Court. I have read the correspondence between the barristers and the PCC, and the summary of it contained in the PCC report. The barristers reject any suggestion that they sought to mislead the Court. They both contend that at the time the order was drafted and put before the Court, they did honestly believe that the administrators had consented to its terms. They both say that the administrators had consented to “the continuation of the proceedings”, and that they understood this consent to include the terms of the order they drafted at the end of the case, reflecting the judgment (noting that the Judge too plainly thought that GLE had consented to that order being made.) Further, they make the point that the administrators, by Charles Russell’s letter, were raising questions about the effect of the order rather than making complaint that their position had been misrepresented; and that, in any event, the order was not enforcing security against GLE, rather its effect was to declare the amount owed by GLE and the ownership of certain copyright as belonging to Quick Draw and not GLE.[21]The PCC report, and the documents which underpin it, demonstrates that the issue of the scope of the administrators’ consent – as it was, and it was understood at the time to be - is rather more complicated than Mr Henry suggests. There is, as one would expect, another side to the story, which the PCC had to take into account in reaching its conclusion.[22]The issue for me is whether there is any arguable error of law in the PCC’s conclusions or reasoning. I do not believe there is. The PCC was quite entitled to conclude, on the evidence before it, that there was insufficient evidence to prove to the criminal standard that there had been any misrepresentation and to dismiss the complaints on that basis.[23]In reaching that conclusion, the PCC relied significantly on the position taken by the administrators themselves, as it was entitled to do. The PCC contacted the administrators of GLE and correctly noted that they did not and never had complained that their position had been misrepresented to the court. The PCC referred to the Charles Russell letter (the high point of Mr Henry’s case), and correctly noted that the administrators’ solicitors did not complain in that letter that their position had been misrepresented, nor in that letter did they complain that they had not consented to the terms of the order. In my judgment, that was a true and fair reading of the Charles Russell letter. By that letter the administrators sought to “make observations” and “seek clarification” about the order. They confirmed at paragraph 1 that they had consented to the continuation of the litigation against GLE. They then raised an issue about whether (or not) the order allowed for the enforcement of Quick Draw’s security (the letter states “it appears to allow for the enforcement of QD’s security….”), noting that if that was its effect, a further application to the Court would be needed. Charles Russell requested Wiggin LLP “to let us have your thoughts in relation to this”, and concluded that section of their letter with this:
“In summary, it seems … that the Order (properly construed) quantifies QD’s claim but no more...”
[24]This is not a complaint of misrepresentation. Nor is it an assertion that the administrators did not consent. It is a letter intended to make observations and raise questions about the proper construction of the order. It was reasonable for the PCC to conclude, as part of a wider review into the matters raised by Mr Henry for investigation, that the administrators did not say, via Charles Russell in that letter, that “they had not consented to the terms of the order” (quoting from the PCC’s letter(s) of 22 January 2016).[25]There is no error of law, even arguably, in the PCC’s decision. It is a reasonable conclusion on the material before it. By contrast, Mr Henry’s case is built on an inaccurate understanding of the Charles Russell letter.[26]Mr Henry’s other grounds are that the BSB failed to consider all the evidence and misunderstood the scope of its jurisdiction, it did not take into account the standing of the creditors of GLE (as opposed to the administrators), and wrongly took account of the Court of Appeal’s refusal of permission to appeal the strike out of an earlier challenge by way of Judicial Review [paragraph 3 (b),(c) and (d) of the Grounds]. None of these grounds has any arguable merit.[27]Specifically, it is wrong to contend that the PCC erred in considering complaints 1-6 separately from the many other complaints (Ground 3(b)). An allegation that is weak and lacking in merit cannot be kept alive or propped up by another, or series of other, allegations. The sum is not greater than the parts. The BSB was correct to consider each allegation separately, and in this case to conclude that none of complaints 1-6 warranted further action.[28]Grounds 3(c) and (d) are makeweights, not pressed by Mr Sykes in his skeleton or at the hearing.[29]I conclude that the PCC has adequately investigated the complaints and concluded that they should be dismissed. That was a reasonable conclusion properly open to the PCC.[30]I refuse permission for judicial review.[31]Having had the opportunity to reflect on this case further, I conclude that the grounds, although unarguable for permission purposes, are not so poor that I should classify them as being “totally without merit”. I am mindful of the Court of Appeal’s guidance in Samia v SSHD [2016] EWCA Civ 82 and other cases as to what “totally without merit” means. I do understand Mr Henry’s first ground and can see how he got to it; I conclude that it – and the other grounds - lack intrinsic merit and refuse permission to argue them. That is sufficient to dispose of this application.

Civil Restraint Order (“CRO”)

[32]By CPR 23.12, I am compelled to consider making a CRO in circumstances where an application is refused as being totally without merit. But given my conclusion that this application is not to be classified as totally without merit, I am not compelled to consider making a CRO against Mr Henry under that provision.[33]It would still be possible to make a CRO in his case, if I thought that to be appropriate, given Mr Henry’s track record (see CPR 3CPD). He has repeatedly issued claims or made applications in other, related, litigation, all of which have been dismissed as totally without merit. He has brought a number of cases arising out of the 2012 action. Although he scored a modest early success in those cases, when the BSB agreed to reconsider its initial refusal to consider some of his complaints, that success has not been sustained, and he has since then been refused permission on a number of occasions. The list is, I believe, as follows: a) CO/2272/2014: this was Mr Henry’s first judicial review. It was struck out by the Administrative Court (Turner J) after the BSB had undertaken to reopen his original complaints. The Claimant applied to the Court of Appeal for permission to appeal against the Administrative Court’s strike out. The Court of Appeal (Lewison LJ) refused that application dismissing it as totally without merit (C1/2014/3537). b) CO/5689/2014: this was a second judicial review, in which Mr Henry challenged the BSB’s undertaking to reopen the complaints. Permission for judicial review was refused (Dove J) and the application was certified as being totally without merit. c) CO/4690/2014: this was another judicial review by which the Claimant challenged the Solicitors Regulation Authority’s refusal to pursue the complaint against Wiggins LLP in relation to the 2012 action. Permission was refused (Patterson J) and she said the application was totally without merit. d) CO/6219/2015: this was the Claimant’s challenge to the BSB’s decision to dismiss all the Claimants complaints, once the investigation had been reopened, except 1-6 of 337. The BSB wished to investigate complaints 1-6 further. Permission was refused on the papers (Gilbart J) and the application was certified as totally without merit. I am told that the Claimant has applied to the Court of Appeal for permission to appeal against that refusal (pending under reference number C1/2016/1093).[34]I am told that there is another JR pending against the Solicitors Regulatory Authority in relation to the 2012 action. I have no further details of that application.[35]Faced with the possibility of a CRO, further submissions have been made by Mr Sykes on behalf of Mr Henry, seeking to persuade me not to make such an order (and by Mr Wilkins on behalf of the BSB stating that such an order would be justified). Mr Sykes argues that Mr Henry does not intend to enter into litigation in the future without advice from and representation by Counsel and that he is currently involved in other litigation relating to his pension entitlement, where he has acted properly and not faced a string of TWM refusals; that action has nothing to do with the 2012 action.[36]In his witness statement dated 14 September 2016, Mr Henry states:
“I have no intention, and am unlikely ever to have the intention, of conducting any kind of proceedings other than through representation by Counsel. I would note that the four appeals/applications dismissed as being totally without merit by the Judge [ie those listed above] were all matters in which I was not represented by Counsel at the time the appeal/application was made or it was decided to make it. I do not intend to be in that position again.”
[37]On the basis of these assurances, I am prepared to accede to Mr Sykes’ submission, and not make a CRO this time. Mr Henry must realise that the Court is very likely to make a CRO if he issues any more unmeritorious proceedings or makes or pursues any more unmeritorious applications, relating to the 2012 action or otherwise. This Judgment will be public, and will doubtless be brought to the attention of any Court which strikes out or refuses any further action or application by Mr Henry on the basis that it is totally without merit. Mr Henry has been warned.

Costs

[38]The BSB seeks its costs of lodging the acknowledgement of service and of the further brief submissions dated 9 September 2016 (which I treat as part of its acknowledgement of service, given that they addressed the grounds submitted by Mr Henry out of time, and permitted by me, after the original summary grounds had been filed). The costs claimed are £3,194 including VAT. It is clear to me that the BSB has incurred costs far in excess of this figure in defending this JR to date, and has limited its claim to this relatively modest figure consistently with case law which provides that only the costs of acknowledging service are normally recoverable at this stage. Although Mr Henry, by Mr Sykes, accepted at the hearing the general principle that he was liable for the Defendant’s costs of filing its acknowledgement of service, he did not have the opportunity to address me on the precise figure and so I gave him that opportunity. I have now received submissions from Mr Sykes on the issue of quantum of costs, for which I am grateful. I conclude that, contrary to Mr Sykes’ argument, it was reasonable for the BSB (by its solicitors) to spend 20.3 hours on the preparation of its acknowledgement of service including the updating correspondence which addressed Mr Henry’s late-filed material. Further, I do not agree that this action could have been avoided altogether if the BSB had engaged in correspondence before issue, given the history of the Claimant issuing and pursuing multiple actions, as outlined above; I am sure that whatever the BSB had done, Mr Henry would have issued this action, and these costs would have been incurred in any event. I summarily assess the BSB’s costs at £3,194 as claimed.