Balli, Re Contempt of Court Act 1981 (Rev. 1) [2011] EWHC 1736 (Ch)

[2011] EWHC 1736 (Ch)

Case No 9001 of 2011

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue BIRMINGHAM DISTRICT REGISTRY

Date Friday, 1 July 2011

The Priory Courts

33 Bull Street

Venue Birmingham

B4 6DS

Before

HIS HONOUR JUDGE SIMON BARKER QC

(sitting as a judge of the High Court)

IN THE MATTER OF THE CONTEMPT OF COURT ACT 1981

IN THE MATTER OF RAVINDER BALLI (also known as RAVINDER SINGH)

MR BALBIR SINGH counsel instructed by Kangs solicitors

MR INDERJIT JOHAL in-house counsel for the Solicitors Regulation Authority

JUDGMENT

(corrected 15 July 2011 as footnoted)

HH JUDGE SIMON BARKER QC:

[1]Mr Ravinder Balli, who refers to himself as and wishes to be known as Ravinder Singh (S), is a former solicitor. He was admitted to the Roll on 1.5.09. Approximately 1 month later, R&S Law LLP (R&S) was incorporated as a limited partnership and registered with the Registrar of Companies. At all material times, R&S has operated from premises at 72 Rookery Road, Handsworth, Birmingham, B21 9NL. In August 2009, S applied to the Solicitors Regulation Authority (SRA) for R&S to be approved and recognised as a limited partnership providing legal services. On 22.9.09, the SRA gave its approval and recognition. Less than 1 month later, on 15.10.09, the SRA rescinded such approval and recognition on the grounds that it had been procured by misrepresentation on the part of S. The effect of the SRA’s withdrawal of recognition is that as from 15.10.09 S has ceased to be authorised to provide legal services through R&S.

[2]This was followed, in February 2010, by a forensic investigation into the records and accounts of R&S, which in turn led, on 18.6.10 to the SRA intervening into the practice of R&S and to the referral of S’s conduct to the Solicitors Disciplinary Tribunal (SDT). The effect of the intervention was that S ceased to be entitled to practise as a solicitor with effect from 18.6.10. S appeared before the SDT on 24.1.11, was found guilty of 6 disciplinary offences (3 of which concerned dishonesty), and was struck off the Roll of Solicitors. Shortly beforehand, on 18.1.11, S had caused R&S to be dissolved.

[3]Thus, on any basis, as from 24.1.11, S had no lawful authority to call himself a solicitor or to practise as a solicitor, and R&S had ceased to exist.

Proceeding for Contempt of Court

[4]This proceeding concerns the provision of legal services by S on 26.1.11 and over the period 28.3.11 to 14.4.11 in applications concerning one action (0BM30530) and ancillary enforcement proceedings (8ZA04017). During this period, which was in the immediate aftermath of S having been formally struck off as a solicitor, S conducted litigation as a solicitor through R&S.

[5]The brief particulars of this conduct, which S admits, are as follows :(1) completing and filing an application notice dated 26.1.11 in action 0BM30530 which was completed in the name R&S as solicitors representing the second and third defendants;

(2) on 26.1.11, making a witness statement as a solicitor at R&S and signing a statement of truth as the applicant’s solicitor;

(3) writing a letter dated 26.1.11 from R&S to the court, which letter (a) included a statement that that firm is regulated by the SRA, (b) sought to re-open action 0BM30530 urgently, and (c) enclosed the application notice and witness statement referred to above; these 3 particulars stand together as a single incident;

(4) on 28.3.11, completing a notice of acting for R&S to act as solicitor on the record for the defendants in these proceedings and filing or causing the notice of acting to be filed at court;

(5) on 28.3.11 at 10.58 am, issuing or causing R&S to issue an application as solicitor on the record for the defendants which application sought an order setting aside a charging order made in connection with these proceedings;

(6) on 28.3.11, making a witness statement in support of such application with a statement of truth signed by S as manager of R&S on behalf of the defendants;

(7) on 28.3.11 at 3pm, appearing, on behalf of R&S, as solicitor for the defendants before District Judge Sheldrake at Birmingham CJC on the defendants’ application to set aside the charging order;

(8) on 29.3.11, writing, in the name of R&S as solicitor for the defendants, to the Wolverhampton County Court in action 8ZA04017 stating:

“We confirm we are instructed to act for Mrs Athwal, the defendant in the above matter. We require an urgent hearing in relation to setting aside an order. We enclose herewith form N244 times four, and supporting documentation. We will telephone you shortly to pay the £75 fee.”

The documents on the court file record that a fee was paid; (9) preparing and issuing, or authorising the preparation and issue of, an application notice dated 29.3.11 in the name of S of R&S as a solicitor for the defendants; (10) making a witness statement, incorporated in such application notice, in support of the said application with a statement of truth as manager of R&S on behalf of the defendants; (11) as instructing solicitor on behalf of R&S, instructing Mr Simon Clegg of counsel to appear on behalf of the 2nd, 3rd and 4th defendants in these proceedings at a hearing before me on 5.4.11; (12) attending at the hearing on 5.4.11 as the defendants’ solicitor and, in the course of that hearing, giving instructions to Mr Clegg on the basis that he, S, was the instructing solicitor and was duly authorised to give such instructions; and (13) between 28.3.11 and 6.4.11, or possibly later, communicating in the name of R&S with the claimant’s solicitors, Messrs Bower & Bailey, on the basis that R&S were solicitors instructed to act and on the record for the defendants in these proceedings.

[6]There were two further matters which appeared from the court file, namely:(1) on or about 31.1.11, holding himself out as the solicitor for the 2nd, 3rd, and 4th defendants in a telephone conversation with a member of the court staff concerning the issue fee for an application notice and further copies of that application notice needed for issue; and

(2) on 28.3.11, telephoning the court and writing a letter to the court bearing the reference ‘RS/RB’ requesting an urgent application for a stay of possession proceedings on behalf of the defendants. However, S did not admit either of these matters. In the light of the admissions made, they are to be disregarded for the purpose of committal proceedings.

[7]This proceeding for contempt of court was initiated by me on 14.4.11 as the judge hearing the then ongoing applications by the defendants in 0BM30530 and 8ZA04017. The facts and matters which S admits are serious, S also accepts that they constitute contempt of court.

[8]Having initiated this matter, I considered the appropriate course for the matter to take in open court and on the record so that a transcript could be provided to S and to the SRA. When so doing, I formally reminded myself of the various procedural requirements and safeguards, again so that they would be brought to the attention of S. Accordingly, the matter now proceeds before me as a committal hearing following contempt in the face of the court.

[9]Having said that, I am conscious that the making of a false statement of truth is a contempt of court regulated by CPR 32.14, which provides for contempt proceedings to be brought only by the Attorney-General or with the permission of the court. However, a reference to the Attorney-General was not appropriate because there are other connected matters that fall to be considered as contempt in the face of the court. The appropriate course in the circumstances of this case is therefore to treat such matters as part of the contempt in the face of the court.

[10]There followed 3 procedural hearings :(1) on 10.5.11, following service of the transcript setting out the particulars of contempt under consideration and outlining the procedures and safeguards, there was an initial directions hearing. S was represented by counsel, Mr Balbir Singh, and at my request the SRA attended by Mr Brown and Miss Gelder of the SRA’s Fraud Bureau. Mr Singh had only recently been instructed and he wished to have a conference with S and a dialogue with the SRA. The SRA was asked to inform the court, after due consideration, whether it intended to take action itself against S. A further procedural hearing was fixed for 20.5.11;

(2) on 20.5.11, S was represented by his solicitor and the SRA was represented by Mr Inderjit Johal. A final procedural hearing was then fixed for 6.6.11; and,

(3) on 6.6.11, Mr Singh again appeared for S and Mr Johal for the SRA. Mr Singh formally informed the court that, following a dialogue with the SRA, S would admit 13 of the 15 particulars identified in the transcript of 14.4.11 and the substantive hearing was fixed for 2pm on 1.7.11. At the 6.6.11 hearing, the SRA was invited to submit a short written submission in advance of the substantive hearing so that S would have advance notice of what it might wish to say; and, S was reminded that he was under no obligation either to submit evidence before the hearing or give evidence at the substantive hearing.

[11]My reason for requesting that the SRA should attend at the first procedural hearing and should consider participating in this proceeding is twofold. First, the SRA is able to provide relevant background information and also consider the particulars with a view to informing the court how such matters are viewed by the relevant regulatory authority. Secondly, it was apparent that the conduct under consideration was also potentially a criminal offence, and it was important to know whether or not the SRA intended to initiate a prosecution because – if it did – I would have considered it inappropriate to determine the contempt proceeding and would have stayed or dismissed the same.

[12]In the context of involving the SRA, I bear in mind the provisions of s.20 of the Solicitors Act 1974 which provides : (1)No unqualified person is to act as a solicitor. (2)Any person who contravenes subsection (1) is guilty of an offence and liable on conviction on indictment to imprisonment for not more than 2 years or to a fine, or to both.

[13]I also bear in mind the provisions of s.14 of the Legal Services Act 2007 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.

(2) In proceedings for an offence under subsection (1), it is a defence for the accused to show that the accused did not know, and could not reasonably have been expected to know, that the offence was being committed. (3). A person who is guilty of an offence under subsection (1) is liable— (a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both), and (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both). (4) A person who is guilty of an offence under subsection (1) by reason of an act done in the purported exercise of a right of audience, or a right to conduct litigation, in relation to any proceedings or contemplated proceedings is also guilty of contempt of the court concerned and may be punished accordingly.

[14]Clearly the law contemplates that there may be both contempt proceedings and a prosecution, and equally clearly the criminal court is concerned only with the offence and the – in this case - civil court only with the contempt, but it does not follow that it is necessarily appropriate for a person to face both criminal and committal proceedings.

[15]To my considerable surprise, I have been told by the SRA that this is the first occasion on which a court has notified the SRA of a pending contempt proceeding and asked the SRA to participate. Evidently, the SRA usually only learns of a contempt proceeding concerning a present or former solicitor after the court has dealt with the matter. In my judgment, it is vitally important that the SRA should be notified of a pending contempt proceeding concerning a present or former solicitor at an early stage(1) so that the court may be assisted by the provision of background information, and

(2) so that the court may make an informed decision whether or not it is appropriate to continue to a substantive hearing of the contempt proceeding. The point here being that the court should have regard to the possibility of duplication of proceedings and the risk of inappropriate double jeopardy. A third important reason is that the SRA may engage in a dialogue with the present/former solicitor with a view to establishing agreed facts and thereby help to shorten and progress the matter. As a fourth reason, I would add that, depending on the circumstances of the case, the SRA might also wish to add its support to any mitigation.

Contempt of court ~ the position of a solicitor

[16]The court is not concerned with its own dignity. Rather, it is an essential feature of the due administration of justice that the court should be able to trust that those who conduct litigation as legal representatives(1) are qualified and authorised so to do, and

(2) that they can be can be relied upon to do so in accordance with certain basic standards, which are laid down in their professions’ respective codes of conduct.

[17]In the case of a solicitor, the court will take for granted that the solicitor will act as a filter or buffer to prevent the court from being knowingly or recklessly misled. Moreover, a solicitor conducting litigation is under an express professional duty not to be in contempt of court. By way of example, this duty serves to emphasise and reinforce the provisions in the CPR about the making of witness statements.

[18]All of this is fundamental to the due administration of justice, to the furtherance and attainment of the overriding objective, and to the observance and upholding of the rule of law.

Contempt in the face of the court ~ principles

[19]Punishment for contempt in the face of the court is a summary power which is not lightly invoked by the court. A judge may proceed of his own motion. There is no formal requirement for the matter the subject of the contempt proceeding to be set out in writing; however, in my judgment, given that it is important to allow a respondent an opportunity to obtain legal advice and representation and to allow for a ‘cooling off’ period, the cases in which it may be appropriate not to provide a respondent with written notice of the alleged contempt must be very rare.

[20]The phrase “in the face of the court” is not to be construed literally as meaning in court during a hearing, or even as necessarily being confined to conduct within the precincts of the court. However, there must be a direct and cogent connection with proceedings ongoing before a court.

[21]First and foremost, the court must ensure that proceedings comply with the requirements set by s.6 of the Human Rights Act 1998. For these purposes, a contempt proceeding is to be regarded as the trial of a criminal charge. Thus, a defendant has the right to defend himself in person or through legal assistance of his own choosing or to be provided with legal assistance when the interests of justice so require. In addition, a defendant to a contempt proceeding is not obliged to give evidence and is entitled to the article 6.1 right of protection against self incrimination. Entirely reasonably, S has chosen not to give evidence.

Sanctions for contempt of court

[22]Where the facts constituting contempt are proved or admitted, the seriousness has to be considered by reference to both the gravity of the conduct and also to secure future compliance with a court order or adherence to the rule of law, ie to deter a repetition of the contempt.

[23]When considering the appropriate consequence or sanction for a proven or admitted contempt of court which also constitutes a criminal offence, it is important to remember that the court dealing with the contempt is not to impose a punishment for the criminal offence. That is entirely outside the remit of this court. This court's concerns are only to mark disapproval of the breach of an order or disregard of the rule of law and to ensure future obedience to such.

[24]The sanction for contempt of court is set by s.14 of the Contempt of Court Act 1981 and is a fixed term of up to 2 years imprisonment or a fine or both. When considering the imposition of a sentence of imprisonment, the court should always ask itself whether such sentence might properly be suspended. In addition, the court should make clear that, if a sentence of imprisonment is imposed, the contemnor will be released Corrected to delete reference to release being on licence, see footnote 2 under paragraph 43. after serving half the sentence.

[25]If the court decides that a sentence of imprisonment is absolutely necessary and must be imposed, it should be for as short a term as possible commensurate with the gravity of the contempt and the need to deter the contemnor. If the appropriate period of imprisonment under consideration is 12 months or less, the court should further consider whether a shorter term will sufficiently meet the sentencing objectives, especially if the contemnor has not previously experienced imprisonment.

[26]In this context, Mr Singh has drawn my attention to ss.152-3 of the Criminal Justice Act 2003; to the recent decision of the Court of Appeal (Criminal Division) in R v Trigger

[2007] EWCA (Crim) 254

, especially at paragraphs 3 (passing the custody threshold does not necessarily mean that a sentence of imprisonment must or should be imposed), 6 (unless custody is necessary for public protection consideration must be given to the aims of rehabilitation and community service or a fine), and 7 (particular care should be taken before passing a custodial sentence on a first offender); and, to the Sentencing Guidelines Council’s guidance on seriousness and sentencing thresholds.

[27]In addition, where contempt has been admitted and the court considers that imprisonment is necessary, consideration must be given to reducing the appropriate sentence to reflect the admission made. The Sentencing Guidelines Council recommends a reduction of 1/3 for a ‘guilty plea’ at the earliest opportunity; a reduction of 1/4 for a plea after a trial (or substantive hearing) date is set, and a reduction of 1/10 for a plea at the trial. These guideline reductions may be scaled down where the case is overwhelming, so that a reduction for an early plea may be 1/5 or less.

[28]If the court decides that a prison sentence is necessary and has also decided on the appropriate term, it should then consider whether that sentence should be suspended. A feature of suspending a sentence is that the deterrent effect is emphasised, at least over the period of suspension. This may be up to 2 years, but not usually more than 18 months for a prison sentence of 12 months or less.

[29]In the recent case of JSC BTA Bank v Solodchenko (No2)

[2010] EWHC 2843 (Ch)

Proudman J set out a helpful checklist of factors a judge should take into account for sentencing purposes. These include : - whether another party to proceedings is prejudiced, by virtue of the contempt and whether that prejudice is capable of remedy; - the extent to which the contemnor has acted under pressure; - whether the breach of the order or the contempt in the face of the court was deliberate or unintentional; - the degree of culpability; - whether the contemnor was placed in breach by reason of the conduct of others; - whether the contemnor appreciated the seriousness of the breach; - whether the contemnor has cooperated, and if so, at what stage and to what extent; - whether the contemnor has admitted his contempt and has entered the equivalent of a guilty plea, and if so what, if any, reduction should be applied to the appropriate sentence; - whether the contemnor has made a sincere apology for his contempt; - the contemnor’s previous character and antecedents; - any personal mitigation advanced on the contemnor’s behalf.

The application of the principles to the circumstances of the case and to S

[30]S’s conduct immediately followed his being struck off as a solicitor and the demise of R&S. He nevertheless continued to masquerade as a solicitor before the court and in dealings with other legal representatives engaged in ongoing proceedings. In so doing, he deceived the court, counsel he instructed, and opposing representatives, albeit not his own clients. These are extremely serious matters.

[31]S’s clients approached him because he is a family friend. S says, and there is no evidence to the contrary, that neither he nor “R&S” charged a fee or profited from the provision of his services. That may be so, and while conducting the practice of a solicitor for profit would undoubtedly be an aggravating factor, the fact that no charge is made is not of itself a mitigating factor.

[32]Mr Singh urges upon me that S acted under considerable emotional pressure from family friends and through them from his mother. In my judgment, any person who has undergone the training necessary to be admitted to the Roll of Solicitors will have learnt enough to know that such pressure is not to be afforded any weight. Moreover, as Mr Singh pointed out, S could have avoided the particulars relating to witness statements by signing as a litigation friend. In relation to culpability, I accept that S had no desire to cause harm.

[33]The SRA submits that S’s conduct should be characterised as dishonest. In my judgment, it was certainly intentional and deliberate, and is something for which S alone bears responsibility. In reaching this conclusion, I bear in mind that S is still a relatively young man (26) and that he had been admitted as a solicitor less than 2 years previously.

[34]I also bear in mind that(1) S’s “clients” approached him,

(2) that his intense involvement arose when his “clients” were facing an extreme situation (albeit entirely of their own making) when bailiffs arrived to take possession of premises and recover property to satisfy a judgment debt, and

(3) it may justifiably be said that, in the end, the other party to proceedings was not prejudiced by virtue of the contempt, at least not in a way incapable of remedy. It also appears that S actually lent money to his clients to assist them in meeting their financial obligations.

[35]However, there is no good reason why S could not have assisted the Athwal parties in finding and instructing a solicitor. Further, I cannot properly overlook the fact that S determined to hold himself out as a solicitor over two periods (26.1.11 and late March until unmasked by the opposing solicitors in mid April). In addition, it is clear that although he personally had caused R&S to be dissolved, when it suited his purpose he had no compunction about reviving R&S and holding R&S out as a firm of solicitors regulated by the SRA.

[36]Going on the record, appearing before a District Judge as a solicitor advocate, and appearing in the High Court as an instructing solicitor are significant steps warranting authority not only as a party’s solicitor but, overarching that, as a person qualified so to do. When that warranty is knowingly false, it is a very serious interference with the administration of justice and reveals a flagrant disregard for the rule of law. The same is true when a person signs a witness statement or makes an application as a solicitor or, purportedly, in the name of a firm of solicitors, or writes a letter as from a firm of solicitors regulated by the SRA. In the proceedings the subject matter of this contempt proceeding, S has done all of these things.

[37]Important factors to take into account in S’s favour, in addition to his youth and relative inexperience, are his early cooperation in and admissions during the contempt process, that he has made a sincere apology to the court through a letter which reflects an appreciation of the seriousness of what he has done, and that – with the exception of his professional life as a solicitor – he is or appears to be of good character with no “antecedents”. Moreover, there is a substantial body of testimony, in letter form, to his good work in and for the community.

[38]In mitigation, Mr Singh has put all these matters forward in a balanced and cogent way. His submission is first that the custody threshold is not reached and that a financial penalty is appropriate, and, secondly, that the emotional pressure, good character, absence of threat to the public, lack of harm to others, improbability of recurrence, effect of this proceeding, genuine remorse, and all other circumstances warrant or fully justify suspension of any term of imprisonment.

Decision

[39]In reaching my decision, I bear in mind all the matters set out in this judgment and everything that has been said on behalf of S.

[40]This is not a case in which the contempt may properly be addressed by the imposition of a fine. It is an extremely serious matter which unquestionably crosses the custody threshold.

[41]I consider that the entry point for this contempt is 12 months. Bearing in mind that S has no prior experience of prison, it would be appropriate to reduce that term by 4 months. Next, having regard to an appropriate reduction for early admission (or “guilty plea”) – which in my judgment ought to be tempered by the inevitability of the outcome – a further reduction of 1/4 or 25% (ie a further 2 months) is also appropriate. Thus, the term of the sentence is 6 months.

[42]On the question of whether the sentence should be suspended, I consider again and afresh the matters advanced in mitigation. However, the gravity of a contempt of this nature is such that, in my judgment, it must be marked by the imposition and serving of a prison sentence.

[43]I therefore impose a sentence of 6 months imprisonment for the contempt of court admitted by S. This means that 3 months will be served in prison and S will then be released unconditionally, see s.258(2) Criminal Justice Act 2003 Corrected by judge, when giving judgment on 15.7.11 in respect of contemnor’s application to purge contempt (

[2011] EWHC 1865 (Ch)

), by deleting the erroneous statement that release would be on licence and that good behaviour while in prison was relevant to release, and inserting instead the reference to s.258(2) which provides that “As soon as a [contemnor] has served one-half of the term for which he was committed, it is the duty of the Secretary of State to release him unconditionally”. .