Francis & Ors v Barton Bridging Capital Ltd & Anor [2010] EWHC 1525 (Ch)

Case No HC10C01009[2010] EWHC 1525 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of JusticeDate Friday, 30 th April 2010
Before
MR. JUSTICE MORGAN__________B E T W E E N:
Between
FRANCIS & OrsApplicantsBARTON BRIDGING CAPITAL LTD & AnorRespondents__________Transcribed by BEVERLEY F. NUNNERY & COOfficial Shorthand Writers and Tape TranscribersQuality House, Quality Court, Chancery Lane, London WC2A 1HPTel: 020 7831 5627 Fax: 020 7831 7737info@beverleynunnery.com__________MR. IMPEGWA appeared as the proposed representative for Applicants.MR. A. MILNER (instructed by Matthew Arnold & Baldwin LLP) appeared for Respondents.__________J U D G M E N T
[1]Before describing the particular point which has arisen in this action, and which I intend to decide in this judgment, I ought to say a little about the nature of the action in which the point has arisen. The claim is made by Mrs. Lurline Francis against four defendants. The first defendant is a lender, Barton Bridging Capital Ltd, the second is Allsop (a firm), whom I understand to be a firm of estate agents, surveyors and valuers, the third is Mathew Arnold & Baldwin (a firm) who are solicitors, who have acted in the past and are acting in this litigation on behalf of Barton Bridging Capital Ltd. The fourth defendant is a body called “Fast Money.Co.Uk Ltd” who I understand to have been a form of broker or mortgage agent who were involved in the past in connection with the grant of a mortgage in favour of Barton Bridging Capital Ltd.[2]The relief which is sought in the claim form in its present state is as follows. An order is claimed restraining the relevant defendants from disposing of or otherwise dealing with 45 Barcombe Avenue, London SW2. That was a property which was mortgaged to Barton Bridging Capital Ltd and in respect of which Barton wished to exercise its right to take possession as mortgagee and its right to sell as mortgagee. The second head of relief claimed in the claim form was for permission to issue proceedings against Matthew Arnold & Baldwin for contempt of court. The third head of relief was that Mrs. Francis should be restored so as to be the registered proprietor of 45 Barcombe Avenue, London SW2. The fourth head of relief was to set aside the mortgage or charge over that property in favour of Barton. The fifth head of relief related to certain personal belongings of Mrs. Francis which it is said had been in the property and had been removed. Finally, there is a claim for costs.[3]The court has before it today an application on behalf of various persons to join further claimants and, indeed, further defendants to the claim form, and to amend the claim as appears from the revised claim form. In the revised claim form, which is in draft only, the claimants are to be Mrs. Francis as before, but joined this time by her two sons Mr. Timothy Francis and Mr. Christopher Francis. The defendants have grown in number, there are to be 10 named defendants, and then there are to be persons unknown who are numbered 1 to 10, but no further information is given as to their identities. It is not necessary for the purpose of the present judgment to refer to each of the 10 named defendants in the draft amended claim form; they include Barton Bridging Capital Ltd, Fast Money.Co.Uk Ltd, and Matthew Arnold & Baldwin. They also include two firms of solicitors whom I have not previously mentioned who, as I understand it, were involved on behalf of Mrs. Francis, or perhaps on behalf of her two sons, in connection with the mortgage transaction which is what has led to the state of litigation between these parties.[4]As I have indicated in passing, the applications which were listed for hearing today were applications to add parties and amend the scope of the claim. The applications are being made on behalf of three persons, namely, Mrs. Francis and her two sons, Timothy and Christopher Francis. Mrs. Francis is present in court. Mr. Christopher Francis is present in court, Mr. Timothy Francis has not attended court. I have been told that he is either unwell or is at his place of work which makes it inappropriate and inconvenient for him to attend this hearing. At the beginning of the hearing I asked Mrs. Francis if she wished to address me, or have someone else address me on her behalf. I put the same question to Mr. Christopher Francis. They both replied that they wished a Mr. Impegwa, who is present in court, to act as advocate on their behalf in order to make the application before the court. That gave rise to an immediate issue which led to detailed argument, and is the subject matter of this present judgment. Mr. Milner, who appears on behalf of Barton Bridging Capital Limited and Matthew Arnold & Baldwin, who are the only persons who are named as respondents to the application, and the only persons given notice of this hearing, has objected to Mr. Impegwa being granted rights of audience to address the court on the making of these applications.[5]This is not the first time that a point of that kind has been raised and has been considered, although possibly the point has not been considered in as much detail on an earlier occasion as it has been considered on this occasion. I will not narrate the detail of the earlier times when this point was considered and what happened when it was raised. Suffice to say that I have been provided with a witness statement of a Kerry Talbot who is a solicitor at Matthew Arnold & Baldwin and she has set out in detail in a helpful way the course of certain proceedings which were brought by Barton against Timothy Francis and Christopher Francis, those were mortgagee possession proceedings, designed to recover possession of 45 Barcombe Avenue to enable to Barton to sell it with vacant possession. The proceedings appear to have begun in the Lambeth County Court on 12th May 2009; there were many hearings in the Lambeth County Court. On two occasions in particular Mr. Impegwa was present and wished to appear as an advocate on behalf of either Mrs. Francis, or some other member of the Francis family. I am told that on two occasions, 24th November 2009 and again on 25th January 2010 the judge in the County Court (a different judge on each occasion) declined to permit Mr. Impegwa to act as advocate.[6]As against that I am told that on a number of occasions in the High Court, in the Chancery Division, Mr. Impegwa has been permitted to act as an advocate on behalf of Mrs. Francis, or possibly on behalf of other members of the Francis family. For example, on an ex parte application to Norris J, Mr. Impegwa was permitted to address the court and, indeed, Mr. Impegwa tells me that Norris J acceded to his application to the extent that he granted relief pending an early return date, and on the return date the relief was not continued. Mr. Impegwa also tells me that at a hearing in March 2010, before David Richards J, he was again permitted to address the court and he did so, although he did not succeed in the application made on behalf of the Francises. It does not appear from Kerry Talbot’s witness statement, probably because she and her firm knew nothing about it, but I think in December or thereabouts of last year, Mr. Impegwa appeared in front of me, when he was acting for Mrs Francis and, whilst I do not recall the detail of the applications, it certainly concerned Mrs. Francis’ ability to undo what was proceeding in the County Court and the orders for possession and the warrants for possession which had been made in that court. Mr. Impegwa addressed me in detail and took me through a considerable amount of paper work on that occasion. I was sufficiently troubled by the points he raised, that I reserved my judgment for a short period in the afternoon and then gave what I remember to have been a relatively detailed lengthy judgment on the matter, but I dismissed the application that was made before me.[7]I will say immediately, in relation to that previous court hearing before me, that it gave me a considerable opportunity to assess Mr. Impegwa as an advocate. I will say two things in his favour (although it may be later in this judgment I will say matters which are more critical of Mr. Impegwa), Mr. Impegwa is polite and charming in his presentation; that does distinguish him from some litigants in person and some other McKenzie friends who have rights of audience. The other comment I will make about Mr. Impegwa is that he is a very articulate individual and he is able to express himself sufficiently coherently that the court understands the point that he is endeavouring to make. Perhaps to say that he is coherent is an understatement; he can be very persuasive, particularly when he appeals to the court’s sense of justice in dealing with a particular matter. I will make another comment about the occasions on which judges in the High Court have permitted Mr. Impegwa to act as an advocate. As I understand it, and whilst I cannot speak for the detailed thought processes of those learned judges, the hearings they were conducting were hearings at which there were applications of an urgent nature, hard up against deadlines, when serious consequences such as eviction from residential property might come about.[8]When a judge is faced with a litigant in person, who appears to have difficulties in acting in his or her own cause and addressing the court, and there is in court someone who is articulate and apparently well informed, there is obviously a considerable incentive which leads the judge to get as much help as he can from whatever source so that he can have as much information as there is before he comes to what he hopes is the least worst decision, and the least worst order, in all the circumstances. Certainly that was my thinking in December of last year when I permitted Mr. Impegwa to address me. I do not recall if Mrs. Francis was in court on that occasion, I do remember that her sons – or at least one of them – were present. I was told that something very serious was about to happen and the intervention of the court was imperative, and rather than treat the matter lightly, or dismiss it out of hand or insist on Mrs. Francis addressing me when it may be she would not have been able to explain all the relevant considerations, I gratefully listened to Mr. Impegwa who was in a position at least to answer my questions and in that way certain information was imparted to me. However, I do not see the issue which arises today as one which falls to be decided in quite that way.[9]The mortgagee, Barton, did obtain possession, did enforce the order for possession, did sell the property and has received the proceeds of sale. The urgency, the deadline and the “cri de coeur” that the court should intervene, is now all in the past. We have entered a new phase of what may be this continuing litigation. It is now intended, it seems, by Mrs. Francis and her two sons that they should bring or continue claims which will seek to right what are perceived by them to have been grievous wrongs, perhaps the remedy will be compensation, perhaps the remedy will be setting aside of various steps but this is to happen pursuant to litigation which will not be brief or straightforward. It seems to me that in those circumstances I have to decide whether, on this present occasion, and indeed into the future throughout this litigation, the court should permit Mr. Impegwa to act as an advocate or should not permit so to act. Because this is a matter which is going to recur, and because I can see that it is of considerable importance to both sides in this litigation, I have invited the parties to address me in detail. For this purpose, Mr. Impegwa represented himself and put forward his reasons why he should be permitted to be an advocate. I believe that my attention has been drawn to the relevant statutory provisions and the relevant authorities. I will briefly refer to what they are.[10]The matter is governed by the Legal Services Act 2007. I will refer to the sections, but I will not read out in extenso the relevant provisions. Section 12 of the 2007 Act defines “reserved legal activity”. That definition concludes two matters, the first is the exercise of a right of audience, and the second is the conduct of litigation. Schedule 2 to the 2007 Act defines “right of audience” and “conduct of litigation” (see paras. 3 and 4). There is no doubt that if Mr. Impegwa is to address me on this occasion and the court on a future occasion he will be exercising a right of audience, if he is permitted to do so. Section 13(1) states:
“The question whether a person is entitled to carry on an activity which is a reserved legal activity is to be determined solely in accordance with the provisions of this Act.”
Section 13(2) refers to the person being so entitled if he is an authorised person or if he is an exempt person. Mr. Impegwa does not contend that he is an authorised person. Section 14 provides:
“(1) It is an offence for a person to carry on an activity (“the relevant activity”) which is a reserved legal activity unless that person is entitled to carry on the relevant activity.”
These provisions are supplemented by Schedule 3 to the 2007 Act which deals with exempt persons. The exemption for rights of audience is dealt with in para. 1 of Schedule 3, and the exemption as to conduct of litigation is dealt with in para. 2. The way in which the provisions are drafted is this: under Schedule 3, para. 1(2)(b), the person is exempt and is therefore an “exempt person” if he has a right of audience granted by the court in relation to the relevant proceedings. If the court grants the right of audience then the person is exempt, and he is exempt in particular for the purposes of s.13(2) of the 2007 Act. If I give Mr. Impegwa the right of audience there referred to then that is all he needs, and there is no fetter upon him exercising it.[11]As to the conduct of litigation, para. 2 of Schedule 3 refers to an exemption in relation to the conduct of litigation which is granted by the court in relation to the proceedings. Mr. Impegwa does not ask today for such an exemption, he has not asked in the past for that exemption and indeed he indicated to me that he has no intention of asking for that exemption. The only reason I refer to it is that it is said with some force by the defendants that Mr. Impegwa has been conducting this litigation in the past without there being an exemption in place and therefore he has infringed the 2007 Act and, indeed, has committed an offence. As it is not necessary for my decision to make such a finding – and such a finding would be a very serious matter involving criminal activity – I will desist from discussing the matter further. Whilst dealing with these legal provisions I can also say that certain matters relied on by Mr. Impegwa do not advance his case. He relies on the Powers of Attorney Act, 1971 and the fact that he tells me he has been appointed an attorney for Mrs. Francis and Mr. Christopher Francis, at any rate. However, being an attorney under the Powers of Attorney Act does not confer on Mr. Impegwa a right of audience.[12]The other matter Mr. Impegwa relies upon is the Financial Services and Markets Act 2000 (Rights of Action) Regulations 2001. He draws my attention to regulation 4 which deals with the circumstances in which certain persons have a right of action. Whether Mr. Impegwa, as attorney or otherwise, has a right of action under the relevant statutory instrument is nothing to the point, the issue here is whether someone has a right of audience. If someone has a right of action they may be able to take the role of the claimant, or party, but Mr. Impegwa is not a party to this litigation, he does not seek to be added as party, he seeks instead a right of audience to act on behalf of a different person who is a party.[13]Further guidance on how I should approach my power to permit Mr. Impegwa to act as advocate in this case is contained in the decision of Re N (A Child) [2008] 1WLR 2743, a decision of Munby J, as he then was. Munby J was considering s.27(2)(c) of the Courts and Legal Services Act 1990. The provisions to which I have referred are now contained in the Legal Services Act 2007 but they are in substance the same as those considered by the learned judge. Munby J considered a number of earlier cases in the Court of Appeal. He detected that there were differences of approach or differences of principle between the various statements of principle, and he sought to identify the governing principle which he was to apply. He found that in the judgment of the Court of Appeal in Clarkson v Gilbert [2000] 2 FLR 839. In particular he referred to the judgment of Clarke LJ at paras 28 and 29 and to the judgment of Lord Woolf LCJ at para 20. At para. 41 of his judgment, Munby J referred to the guidance given by the earlier case. He commented that cases occurred at different points on a spectrum, different cases had different facts, and it was difficult to lay down precise guidelines that could embrace the whole variety of facts which could potentially arise. Distinctions were to be made between certain points on the spectrum which perhaps arose on a regular basis. There was a difference between a spouse or a family partner acting for a litigant on the one hand, and someone who, to quote from the Clarkson case, set himself up as an “unqualified advocate” and held himself out as providing advocacy services, whether for reward or not. In a case where one has a professional, non-qualified advocate, the court is going to be more reluctant to permit such a person to have a right of audience. It might be appropriate to say that one should permit that only in exceptional circumstances. Conversely, where one has a family member, the court will be more ready to permit the family member to act as an advocate, and a test which refers to “exceptional circumstances” will not be an accurate or helpful test to apply. I bear in mind the very useful guidance given, first by the Court of Appeal, and then summarised in the judgment in ReN.[14]In the course of the hearing, as a result of questions put to Mr. Impegwa by me, I was able to establish certain facts in relation to Mr. Impegwa. He did not provide a CV, although the provision of such a CV is recommended in the Practice Note (Family Courts: McKenzie Friends)(No.2) [2008] 1 WLR 2757 which relates in particular to the Family Division. Indeed, that Practice Note recommends the provision of a CV even where the individual is to be a McKenzie friend without the right of audience and the position is a fortiori where he is to seek a right of audience. Mr. Impegwa is not a qualified lawyer, he is not a barrister, he is not a solicitor, he does not have a legal qualification and he does not profess to have any particular legal skills. However, he does have access to legal materials. In this electronic age he is able to search for and find materials that may be relevant. Of course, if one does not have the earlier training and sufficient experience, such a search may throw up things that appear to have some relevance but which a trained lawyer would say at once are beside the point. Mr. Impegwa does not have any experience of litigation to which he has drawn my attention, apart from the fact that he has now appeared a number of times in the High Court and addressed Judges of the Chancery Division on matters such as mortgagees’ powers of sale and subrogation, for example in a case where a loan is used to pay off a prior security. I have also made general comments on the fact that Mr. Impegwa conducts himself in a perfectly orderly, polite way and I have commented on the fact that he is articulate.[15]One matter which is of some importance in cases of this kind is whether the person seeking a right of audience is charging for his services. In my judgment it would be undesirable for a sub-industry to grow up, with persons acting as advocates, charging for their services, when they are not qualified as solicitors or barristers, so that their clients may be getting a poorer quality of service than the clients understand, and further, such persons are not regulated by professional bodies. Regulation by a professional body in relation to someone acting as a solicitor or barrister is a matter of the greatest public importance, whereas someone acting as an advocate, charging for his services and free from regulation would be, in general terms, a matter of grave concern. It is not clear to me whether Mr. Impegwa is charging for his services. It is not clear whether he has charged in the past, or whether he intends to charge in the future, or whether he only intends to charge if events turn out positively, but perhaps not if events turn out negatively. There are certainly indications in the documents which have emanated from the Francises, or from Mr. Impegwa himself, that this is a transaction in which there is a commercial element, and it is not simply a case of public interested altruistic support for the Francises in the position in which they find themselves. I am not going to make a finding that Mr. Impegwa has charged, or intends to charge for his services. As I say I am sceptical about his protestations that he is not, but I will act on the basis that he is not charging and I will decide what to do on that basis.[16]There are a number of considerations which govern the outcome of this particular application. I think it is not helpful to Mr. Impegwa that he has apparently sailed very close to the wind as regards conducting litigation contrary to the Legal Services Act 2007 in connection with this case, but again I have said that I am deliberately not going to decide that point, so I do not take that into account. He has acted as an advocate on a number of occasions, but that has not been a breach of the 2007 Act because when he has acted as an advocate the court has permitted him to do so.[17]I have stressed that we are at the beginning of a new chapter in this continuing litigation. I have had my attention drawn to the nature of the claims which Mrs. Francis, and Timothy and Christopher Francis would, with Mr. Impegwa’s assistance, wish to put forward. The allegations they wish to make are obviously very important to them and, if they were right, then there would be a grave injustice if they were not able to put forward those allegations. The allegations are that there has been a conspiracy to defraud Mrs. Francis and her two sons, there has been widespread dishonesty practised by a mortgage lender and by solicitors, and various other acts of wrongdoing are intended to be alleged. The gravity of those allegations causes me to pause before I permit Mr. Impegwa to be the advocate who puts them forward. As is well known, barristers and solicitors conducting litigation must not make allegations of that kind unless important safeguards are observed. Those safeguards are, I dare say, unknown to Mr. Impegwa and he has shown no sign thus far that he is observing any such safeguard. In other words, Mr. Impegwa appears to be encouraging Mrs. Francis and her two sons to make allegations of very great seriousness, of dishonesty in particular against professional people, when one has reason to doubt that he has given adequate thought to the proper basis (if any basis) for making those allegations.[18]The safeguards which govern the behaviour of solicitors and barristers are there for a purpose. One of their purposes is to protect defendants from wholly unwarranted allegations being persisted in and perhaps being reported to third parties quite wrongly. I think that in considering whether to permit Mr. Impegwa to act as an advocate I take into account the interest of the claimants, but I cannot leave out of account the legitimate interest of the defendants to be protected in the way that the law regards as proper.[19]There is another matter of grave concern about Mr. Impegwa acting today or on any future occasion for Mrs. Francis, Christopher Francis and Timothy Francis. I know enough of the background to this case and enough of the allegations intended to be made to see at once that there is the clearest conflict of interest between Mrs. Francis and her two sons. On one view, before the relevant transaction Mrs. Francis was a part owner of the property whereas after the relevant transaction she was no longer a part owner of the property and the property was owned by her two sons, who then mortgaged it for a substantial sum at rates of interest which no doubt reflected the fact that the money was short term money only. Mr. Impegwa recognises that there is a conflict of interest, he says he has drawn it to the attention of his clients. Whereas a lawyer would decline to act for clients who are in conflict in that way, Mr. Impegwa continues to act and, indeed, wishes to act today for all three of the Francises and wishes to continue a claim in which all three are claimants.[20]There are other respects in which Mr. Impegwa’s involvement could be harmful to Mrs. Francis and her two sons. Without going through the history of this litigation, it is sufficient to say that there have been many applications over a relatively short period resulting in Mrs. Francis and her sons losing application after application. So far Barton has added their costs to the security and so it may be that orders for costs have not been obtained from the court on the occasion of these failed applications, but today and in the future, if applications are made which fail the usual approach to the court will be to make the losing party pay the costs of the successful party. It seems to me, based on what I have read of the history, that Mr. Impegwa does not have the necessary judgment and experience to decide when applications should be made, what the applications should be about and how they should be best presented. It may be that those comments deal more with the conduct of the litigation rather than acting as an advocate, but they do point out the very real danger of encouraging Mr. Impegwa to continue to be involved in providing services which would normally be provided by an experienced and qualified lawyer.[21]The matters I have referred to so far are powerful reasons for not permitting Mr. Impegwa to act as advocate. However, those reasons do not stand alone and there are matters to be put in the balance on the other side. Mrs. Francis, I am told, is an elderly lady and while she is able to come to court I am told that she is not able to describe in detail and cogently, with the benefit of legal references, the way in which she wishes to put her case. Her case, indeed, is that she has really been taken advantage of and duped, possibly by her sons, possibly by others. Mr. Impegwa would want to allege certainly by others. The position of the two sons is not identical to that of Mrs. Francis. Mr. Impegwa has sought to give the impression that the sons just really would not cope with conducting this litigation on their own, and I am prepared to assume that most of what he says is right. That means that if I prevent Mr. Impegwa acting as advocate on this occasion or a future occasion there must be grave doubt as to whether these claims will go forward. As against that, Mr. Impegwa says that the Francises have been in touch with a solicitor and the question of legal aid leading to that solicitor being instructed appears to be a live one. I have some doubts about the reality of that, but it is right to mention that it is a possibility. Nonetheless, I have to face up to the very real possibility that if Mr. Impegwa does not act for the Francises they may be prevented in practical terms from putting forward these claims.[22]It is not possible for me to assess whether or not there is anything in these claims. It may be that Mrs. Francis has some claim or other against her sons. It may be she would not wish to put forward that claim. It may be that the two sons do not have any assets which would make them worth pursuing. It is much less clear that Mrs. Francis or her sons ever had a claim against the defendants but, as I say, today is not the time for me to form a view, even a preliminary view, about that. I will proceed on the basis that Mrs. Francis and her sons may have, at the back of all of this, some legitimate grievance or ground of complaint, to which the court would give effect in some way. I do not know at what level of compensation, or with what form of relief.[23]Having assessed those principal considerations I now must stand back and balance up the arguments in favour of allowing Mr. Impegwa to continue and of preventing Mr. Impegwa from continuing. In my judgment the arguments against Mr. Impegwa continuing is very much stronger than the arguments in favour. I have thought long and hard whether I should shut Mr. Impegwa out from acting as advocate with the consequence that this action may go nowhere. For all the reasons I have given as to why I am concerned about Mr. Impegwa acting as advocate I am persuaded that it is simply not appropriate in this case to allow Mr. Impegwa to act as the advocate for Mrs. Francis, or Christopher Francis, or Timothy Francis. Accordingly, he may not address me further on this application. I hope that having gone into the matter in that way that it will not need to be revisited on a future application (if there is a future application) in this action. _________

Cited in 1 later judgment