Mengiste v Endowment Fund for the Rehabilitation of Tigray & Ors [2013] EWHC 857 (Ch)

Case No HC10C01299[2013] EWHC 857 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue The Rolls Building, Royal Courts of JusticeDate Tuesday, 26 th March 2013
Before
MR. JUSTICE PETER SMITH
Between
MengisteClaimantEndowment Fund for the Rehabilitation of Tigray & OrsDefendant
B E T W E E N:
(1) MULUGETA GUADIE MENGISTE
(2) ADDIS INTERNATIONAL TRADING SHARE COMPANY Claimants
- and -
(1) ENDOWMENT FUND FOR THE REHABILITATION OF TIGRAY
(2) ADDIS PHARMACEUTICAL FACTORY PLC
(3) MESFIN INDUSTRIAL ENGINEERING Defendants
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MISS V. RYLATT (Solicitor, Rylatt Chubb) appeared on behalf of the Claimants.
MR. A. SPINK QC and MR. O. ASSERSOHN (instructed by MS-Legal) appeared on behalf of the Defendants.
MR. G. McPHERSON QC (instructed by RCP LLP) appeared on behalf of the Respondent, Rylatt Chubb.
J U D G M E N T

Introduction

[1]On 22nd March this year, I handed down an open and confidential judgment in this action. Reference should be made to the two judgments, which are now both open, save in respect of two paragraphs in the confidential judgment which remain confidential, which set out the background for the present application. The present application is by the defendants against the claimants’ solicitors, Rylatt Chubb (herein after “RC”) for a wasted costs order. As a preliminary to that exercise, RC made an application for me to recuse myself from that application. This is almost becoming de rigueur. However, I will confine myself solely to considering the way in which RC puts its case in this application.[2]At the conclusion of this part of the various applications before me, I indicated that I would not recuse myself and would give my reasons later. By this judgment, I give those reasons now. I would have preferred to have given a written judgment, but time constraints prevented that. There are only two days left before the end of term and, in my view, it was in the interests of justice as between the parties and in the just administration of proceedings that this decision should be dealt with expeditiously, because self-evidently, until this decision is made, any further progress on the wasted costs application cannot proceed. Given the complex nature of the overriding action, it was essential, in my judgment, for the same reasons, that any satellite matters should be determined as expeditiously as possible.

Events leading up to present application

[3]I released a draft judgment in early March, certainly before 8th March. As is usual, that draft indicated that observations were required and that the hand down would take place on Friday, 22nd March. That judgment was extremely critical of the evidence of the claimants’ expert, as set out in the trial and the judgment. Throughout the course of the trial and the judgment, he was called Mr. Jones. He had delivered four reports, was extensively cross-examined, and provided in addition a memorandum in August 2012, to which I shall make further reference.[4]To put it shortly, as set out in the judgment, I accepted the defendants’ comprehensive criticisms of Mr. Jones’ evidence, and it transpired during the case that he was totally inexperienced as an expert within this jurisdiction, had never given evidence before, and had delivered reports which contained numerous examples of statements and assertions which were out of his area of expertise. His sole presence in the case was to give guidance to the court as to Ethiopian Law. There were also large tracts in all the reports where he moved from that of the objective expert, as required by CPR 35, and sought, in effect, to argue the claimants’ case.[5]The examples of his failings are legion. The defendants referred me again to a large number of paragraphs of their closing submissions highlighting the deficiencies as regards his report, and I refer to para.44 of the defendants’ present skeleton. The paragraphs in question are 122, 126, 127, 128 to 131, 146 to 164, 165 to 167, 227, 232, 238 to 240, 259, 296 to 298, 308 to 309, 324 to 327, 333, 346 to 347, 355, and 462 to 463 of the defendants’ original closing submissions. Finally, not to be outdone, they also referred me to paras.37 to 41 of their supplemental submissions. It is in my view now, and was then and remains so, not possible to overstate the inadequacy of his reports and his performance in the witness box.[6]In their submissions before me on this application, they set out further passages (see paras.148 and 149) in their skeleton argument, and those should be set out in this judgment as examples of the deficiencies of Mr. Jones: “148 Mr. Jones’ reports are riddled with inaccuracies, omissions, mischaracterisations, exaggerations, and inappropriate assertions of fact (inappropriate both because it is not for Mr. Jones to draw such conclusions and because of the unbalanced and/or sweeping way in which they are expressed), which both indicate his inherent unreliability and are also inconsistent with the proper expression of independent expert opinion. Just by way of brief example:a. In his report of 9 August 2010 Mr Jones makes the factual assertion (without qualification or balance) that D1 and D2 ‘committed perjury’, ‘committed the offence of fraudulent misrepresentation’, and he accuses them of fraudulent conduct and of presenting misleading statements to the Ethiopian courts, all committed through a criminal conspiracy (52-54 [13/1/18-19]).b. In the report of 9 August 2010 Mr. Jones states, again without qualification or balance makes the factual assertion ‘…that Effort was always the principal driver of the illegal attack against claimants’ property rights came out most clearly when the flawed judgement of the court had to be executed by auction (68 [13/1/22]).c. In his report of 16 December 2011 Mr. Jones makes a number of factual assertions about the Inventory Report which strayed outside his role as an expert (from 16-29 and in particular 24, 26, 28 and 29 [13/3/203-207]). Many of these assertions are unequivocal in nature and totally contrary to any reservation (advanced at the April In Camera Hearing that ‘assuming that these are the facts’ or similar).d. In his report of 16 December 2011, Mr. Jones cites an extract from the First Claimant’s witness statement on the basis of which he makes factual assertions [(24-25) 13/3/206] which are outwith the parameters of Mr. Jones’ duties as an expert.e. In his report of 16 December 2011, Mr. Jones continues to make factual assertions (26 [13/3/206]) which is also outwith the parameters of Mr. Jones’ duties as an expert.f. In the report of 16 December 2011, Mr. Jones states in relation to the approach of the Regional Supreme Court hearing the Claimants’ application for a review of the first instance judgment to the ‘new’ evidence on which the Claimants wanted to rely on Claim 1: ‘...the injustice of this approach is clear beyond doubt’ (109 [12/3/242]). Given that, viewed reasonably and objectively, it is plain that there is nothing in the complaint about the approach taken by the review court on this issue (see later in these submissions for the reasons why) this is a particularly sweeping, unbalanced and inappropriate expression of opinion.g. Exactly the same can be said of Mr. Jones’ statement in 46 of the report of 16 December 2011about D2’s supposed ‘fundamental’ change in case in relation to Claim 1 (which, viewed reasonably and objectively, was nothing of the sort): ‘If such a complete change in the nature of the claim could not alert the highest court of the regional state to the fraudulent nature of the whole suit, I cannot see what else would.’ [13/3/215].h. And again in relation to Mr. Jones’ statements in the report of 16 December 2011 about the (perfectly proper) way in which the first instance court had rejected the evidence submitted to it by C1 and C2 on Claim 1: ‘The court effectively showed that, regardless of the strength of their legal arguments and evidence, the Present Claimants could never have won the case before it’ (50 [13/3/217]) and ‘The facts on the ground appear not to matter and were not allowed [by the court] to get in the way’ (55 [13/3/219]).i. In the report dated 16 December 2011, Mr. Jones introduced for the first time three completely new allegations of judicial bias relating to the Ethiopian Litigation, which are neither pleaded in the P/C nor mentioned in Mr. Jones’ first report (see 57-77 [13/3/220-231]). It goes without saying that, if there were any substance in these allegations (particularly given that, according to Mr. Jones, they are such strong and obvious indications of bias) they would have been pleaded and referred to in Mr. Jones’ first report.j. In the report dated 7 May 2012, Mr. Jones discussed the replacement of C1 at D2 and said that ‘we are here in an analogous situation of a serious and repeated failure by the company’s management organs to comply with explicit legal requirements’ (20 [13/4/9]). 149. In relation to the status and significance of the Inventory Report (as well as on many other issues), Mr. Jones has made a series of sweeping, unbalanced, exaggerated and/or otherwise inappropriate statements incompatible with him being a reliable, objective and independent expert: see, for example: a. The inventory ‘leaves absolutely no doubt that the whole case was a fabrication’ (our emphasis, 105 [13/1/34]). b. ‘What the Claimants have in their hands is a voluntary admission of guilt’ (i.e. that the Defendants committed perjury and that this conduct was relied upon by the court in reaching its judgment) (our emphasis, 108 13/1/108]) c. The inventory is a ‘confession (129 [13/1/44]). d. The inventory provides “conclusive evidence” that the claim had had no factual foundation (our emphasis, 129 [13/1/44]). In addition, Mr. Jones seeks to bolster the above conclusions by making sweeping and one-sided factual assumptions about the way in which the inventory came into existence that are not supported by any evidence”. a. In his report of 9 August 2010 Mr Jones makes the factual assertion (without qualification or balance) that D1 and D2 ‘committed perjury’, ‘committed the offence of fraudulent misrepresentation’, and he accuses them of fraudulent conduct and of presenting misleading statements to the Ethiopian courts, all committed through a criminal conspiracy (52-54 [13/1/18-19]). b. In the report of 9 August 2010 Mr. Jones states, again without qualification or balance makes the factual assertion ‘…that Effort was always the principal driver of the illegal attack against claimants’ property rights came out most clearly when the flawed judgement of the court had to be executed by auction (68 [13/1/22]). c. In his report of 16 December 2011 Mr. Jones makes a number of factual assertions about the Inventory Report which strayed outside his role as an expert (from 16-29 and in particular 24, 26, 28 and 29 [13/3/203-207]). Many of these assertions are unequivocal in nature and totally contrary to any reservation (advanced at the April In Camera Hearing that ‘assuming that these are the facts’ or similar). d. In his report of 16 December 2011, Mr. Jones cites an extract from the First Claimant’s witness statement on the basis of which he makes factual assertions [(24-25) 13/3/206] which are outwith the parameters of Mr. Jones’ duties as an expert. e. In his report of 16 December 2011, Mr. Jones continues to make factual assertions (26 [13/3/206]) which is also outwith the parameters of Mr. Jones’ duties as an expert. f. In the report of 16 December 2011, Mr. Jones states in relation to the approach of the Regional Supreme Court hearing the Claimants’ application for a review of the first instance judgment to the ‘new’ evidence on which the Claimants wanted to rely on Claim 1: ‘...the injustice of this approach is clear beyond doubt’ (109 [12/3/242]). Given that, viewed reasonably and objectively, it is plain that there is nothing in the complaint about the approach taken by the review court on this issue (see later in these submissions for the reasons why) this is a particularly sweeping, unbalanced and inappropriate expression of opinion. g. Exactly the same can be said of Mr. Jones’ statement in 46 of the report of 16 December 2011about D2’s supposed ‘fundamental’ change in case in relation to Claim 1 (which, viewed reasonably and objectively, was nothing of the sort): ‘If such a complete change in the nature of the claim could not alert the highest court of the regional state to the fraudulent nature of the whole suit, I cannot see what else would.’ [13/3/215]. h. And again in relation to Mr. Jones’ statements in the report of 16 December 2011 about the (perfectly proper) way in which the first instance court had rejected the evidence submitted to it by C1 and C2 on Claim 1: ‘The court effectively showed that, regardless of the strength of their legal arguments and evidence, the Present Claimants could never have won the case before it’ (50 [13/3/217]) and ‘The facts on the ground appear not to matter and were not allowed [by the court] to get in the way’ (55 [13/3/219]). i. In the report dated 16 December 2011, Mr. Jones introduced for the first time three completely new allegations of judicial bias relating to the Ethiopian Litigation, which are neither pleaded in the P/C nor mentioned in Mr. Jones’ first report (see 57-77 [13/3/220-231]). It goes without saying that, if there were any substance in these allegations (particularly given that, according to Mr. Jones, they are such strong and obvious indications of bias) they would have been pleaded and referred to in Mr. Jones’ first report. j. In the report dated 7 May 2012, Mr. Jones discussed the replacement of C1 at D2 and said that ‘we are here in an analogous situation of a serious and repeated failure by the company’s management organs to comply with explicit legal requirements’ (20 [13/4/9]). a. The inventory ‘leaves absolutely no doubt that the whole case was a fabrication’ (our emphasis, 105 [13/1/34]). b. ‘What the Claimants have in their hands is a voluntary admission of guilt’ (i.e. that the Defendants committed perjury and that this conduct was relied upon by the court in reaching its judgment) (our emphasis, 108 13/1/108]) c. The inventory is a ‘confession (129 [13/1/44]). d. The inventory provides “conclusive evidence” that the claim had had no factual foundation (our emphasis, 129 [13/1/44]). In addition, Mr. Jones seeks to bolster the above conclusions by making sweeping and one-sided factual assumptions about the way in which the inventory came into existence that are not supported by any evidence”.[7]In addition, in May of last year during the course of the trial of the preliminary issues, after the collapse of the fundamental basis for his original report based on the supposed binding effect of an inventory in respect of the goods, the subject matter of the dispute, which had taken place in the proceedings in Ethiopia, the claimants sought and obtained an adjournment to produce, in effect, a brand new report on the premise now that the inventory did not have the effect that it had been asserted for, and that, therefore, Mr. Jones wished to produce a further report which addressed the position on the supposition that the inventory was merely a piece of evidence, it having come into existence after all the proceedings in Ethiopia had concluded.[8]The claimants obtained an adjournment solely to enable Mr. Jones to provide that, in effect, rejigging of the entirety of his report. He actually abused that permission, because he also, on the day before the adjourned hearing, produced a memorandum which was not covered technically by the permission granted on the terms of the adjournment. By that memorandum (to use his words) he sought to “clarify” the language in his earlier reports, and withdrew a large number of paragraphs of the more controversial and improper statements that were made. He did not, however, entirely withdraw from his stance of believing that he should still argue the case. It was demonstrated by the fact that, in the course of cross-examination, he purported to withdraw his concession about the involvement of the second defendant, EFFORT, in politics, and, what is more, that withdrawal found its way for some inexplicable reason into the claimants’ closing submissions, which seemed to be to be completely inappropriate, because Mr. Jones should never have commented on those matters in his report at all.[9]The poorness of his report is demonstrated by what leading counsel for the claimants said in para.35 of his closing, which says:
“While neither expert may have been up to the quality that the courts have come to expect of experts in this jurisdiction, of the two, it is submitted that Mr. Jones gave the better expert evidence, and is to be preferred where there is disagreement between the two experts”
. That submission, in my view, was breath-taking in its total failure to understand the inadequacy of the performance of Mr. Jones, both in his written and oral testimony. It is, to adopt a phrase which has been used regularly in this case, ‘Alice in Wonderland’ to believe with any credible basis that Mr. Jones’ evidence was to be preferred to that of Dr. Haile. No one, in my view, objectively speaking, having seen the evidence, could possibly conclude that Mr. Jones was to be preferred to Dr. Haile, and I rejected that.[10]I accepted all of the extensive criticisms of Mr. Jones’ evidence put forward by the defendants. I was, therefore, extremely critical of Mr. Jones’ evidence. However, it became clear to me during the course of his evidence that, whilst he struggled, in my view, to give his evidence honestly, he was having difficulties in presenting coherent evidence because he was blissfully unaware of his duties and responsibilities as an expert, as required by CPR 35. Indeed, his performance was so bad that I had concerns about it from his point of view. During his cross-examination by Mr. Spink who, with Mr. Assersohn, appears for the defendants, I raised with him as to whether he was aware of the consequences of the finding that, if his evidence was given either grossly negligently or recklessly, there might be certain consequences. I felt it was necessary at that stage to give him that warning because of the decision of the Court of Appeal in Symphony Group v. Hodgson [1994] QB 179, as analysed in my decision referred to by Mr. McPherson QC who appears for RC in this application in Phillips v. Symes [2004] EWHC 2330 at paras.65 to 74. It seemed to me to be clear that Mr. Jones was floundering out of his depth and could easily blunder into a situation where his evidence would be rejected in such terms that an application could be made against him for a wasted costs order.[11]It will be seen that, in the Phillips v. Symes case, yet another case involving a wasted costs order where the first line of attack was against me, requiring me to recuse myself from that application, I refused that application. On reading the submissions of Mr. Fenwick QC as set out in the judgment, it can be seen that Mr. McPherson’s submissions before me strongly echo the failed submissions of Mr. Fenwick in that decision. Mr. McPherson, in my view, like Napoleon, carried on in the same old way and he shall be defeated in the same old way. The answers to his submissions are, in effect, the same reasons as I gave when I rejected virtually identical submissions in Phillips v. Symes. That is not, of course, a basis necessarily for submitting the applications in the present case, because, as both parties acknowledge, the decision as to whether or not to recuse oneself is a decision that is made on a fact basis on an individual case basis.[12]I return to the gestation of the present application. On consideration of the draft judgment, the defendants wrote a perfectly proper letter on 8th March to RC indicating their position on the draft. The major point for them was, and still is, para.229 of my judgment, where I said:
“It is unfortunate that Mr. Jones (through his inexperience) was allowed to serve such a series of tendentious reports”
. And the important part:
“Anyone reading the reports who is familiar with litigation within this jurisdiction would know that the tenor of the reports was inappropriate”
. In fact, the rest of the judgment acknowledged that he had more or less admitted that in cross-examination.

MS-Legal’s letter of 8th March 2013

[13]Reading the letter, it is quite clear that the defendants were contemplating a wasted costs application. They set out the background and the basis clearly. They set out a number of paragraphs of the judgment; more, in fact, than RC refer to in their closings, where I was critical of Mr. Jones’ expert evidence. They asked a number of questions of RC, which RC did not answer. I do not criticise RC for that, because, no doubt, they felt at that time that they were unable to answer because the matters they were being questioned on infringed on their privilege.[14]In saying that, I do not know what the claimants will do in respect of the present application. Mr. McPherson confirmed to me that no claim had been intimated by the claimants against RC. He pointed out that, had such a claim been intimated, then any questions of privilege would have evaporated, because such a claim, expressly or by implication, on the basis of the case of Lillicrap, involves a waiver of privilege on the part of the claimants and, he submitted, puts all matters in the public domain, not only between the claimants and RC, but also as regards the defendants and RC.[15]In the final paragraph of their letter, they clearly reserve their position, but said that the option was that an application would not be made at the hand down when the judgment was to be delivered. It would have to be adjourned. It would be obvious, given the matters set out in the letter, that they intended when it was feasible to make the wasted costs application against RC. It is, in my view, quite plain that RC knew, on the receipt of that letter, that it was almost inevitable that they were going to be the subject matter of an application for a wasted costs order, and that it was also based on my observations concerning the performance of Mr. Jones as a witness and in the reports he gave, as set out in the letter.[16]That RC knew that such a claim was almost inevitably coming is demonstrated by what they did when they received the letter. First, to assist them in their deliberations, they asked me to permit them to show the draft judgment to their own lawyers. They are asked me by email at 18.33 on 11th March. They received that permission at 10.09 the next day; in other words, their request was dealt with as soon as I saw it. I did not see an email delivered at 18.33 for obvious reasons. Thus, the fact that they were consulting lawyers demonstrates that they knew a wasted costs order application was being contemplated, they knew it was based on my observations in the judgment, and they took legal advice.[17]On 13th March, doubtless after having obtained legal advice, they wrote a long letter to MSL pointing out that they had not received my final response to their corrections. Their contentions were largely an attempt to rewrite out my criticisms of their performance. I confirmed, on 15th March at 10.28, I having been copied into that letter, that they should assume that all of their objections had been rejected. The day before, on 14th March, they sent a long letter to MSL, in effect, arguing that the defendants’ application was misconceived and should be withdrawn. On 20th March (that is to say last Monday), MSL formally made their application, which they had flagged up on 8th March. The objections to my being involved in the wasted costs application flow entirely from my observations in the judgment, the draft of which they had had since early March.

Notification of present application

[18]On 20th March, I received a letter from RC. That set out a number of matters which they proposed would be dealt with at the hand down two days later, on the 22nd. For the first time, despite all of the above, they intended to apply for me to recuse myself. It was in para.4 of the letter. I will read the letter out into the judgment:
“We intend to raise an additional issue - that the Judge should consider recusal in the light of conclusions reached in the judgment which, we will say, are not supported by the evidence (whilst the skeleton argument will amply for reasons for this, we invite the parties [note not me] to note R v. X Crown Court [2009] EWHC 1149)”
. In law, it sets out and, in fact, it sets out no reason whatsoever which shows any basis that I should recuse myself from the case. Mr. McPherson accepted that yesterday and, for the first time, I had an apology on behalf of RC for writing such a letter.[19]At 14.31 on the same day, I responded requiring a skeleton argument by 10am on the next day, as promised. Unbeknown to me, Mr. McPherson, quite properly, in email communications with RC, which I have not seen, directed that it was essential that a skeleton argument be put before me at 10 o'clock the same day. Fortuitously or by chance, we picked the same time, and I duly received his skeleton argument on that day. Of course, I was sitting that day, as is usual, and this was less than 24 hours before the hand down. I also required, when I asked for the skeleton argument, an explanation as to why I was not notified of this earlier. I received a witness statement from Ms. Rylatt of RC saying, in effect, they could not do it before because they had not been warned that the defendants intended to make the wasted costs application before 18th March, they responded to it by taking advice on the 19th, and told me on the 20th.[20]I simply reject that that was the earliest time that they could have informed me, at least as a matter of courtesy, that an application for recusal was within their zone of contemplation. These applications are so important, but so difficult to deal with that the judge has to be given as early as possible the fairest opportunity to deal with them. That, to my mind, is self-evident. The judge has no advocate to argue the case. Whether or not the judge should argue the case is a matter of controversy, because the Court of Appeal have consistently failed to give any clear guidance as to how judges are to react to applications to recuse themselves. The other parties are always faced with a difficulty. Should they participate or not? The other parties cannot be criticised if they take a stance of “We are not willing to become embroiled in this argument, because it is a matter between the applicant and the judge”, and it would be quite wrong for them to descend in the forum. This, of course, leaves the judge in some difficulty, because he has no assistance in meeting the complaints. Some parties take that as not being appropriate to leave the judge so exposed. The defendants, through Mr. Spink and Mr. Assersohn, their lawyers, took that stance, and they have, in my view quite properly, set out the reasons in their skeleton argument why they believe I should not recuse myself. But I stress they need not have done that.[21]In my view, bearing in mind the fact that the defendants’ application was based entirely on the criticisms of RC in the judgment, at the very latest, when the defendants and RC should have informed me was shortly after they had received my indication on 15th March that their suggested alterations were rejected. As it was, I only saw the detailed grounds in Mr. McPherson’s skeleton argument on 21st March. That skeleton argument, somewhat curiously, in paras.1 to 20, deals first with the wasted costs application. It is only in paras.22 and following that Mr. McPherson goes on to deal with the recusal, which, of course, is a precedent which must be overcome before we go on to consider the wasted costs application. In para.27, Mr. McPherson sets out five examples from my judgment. He later added a sixth from the confidential judgment, which did not take the matter any further.[22]To my mind, this was completely unacceptable. I do not consider that I was given proper and timeous notice of this application to enable me to consider it within a reasonable time. I reject RC’s contentions that they could not have notified me earlier. The notification they had formally bringing on the wasted costs application was the final notification. In my view, they knew they were on risk from 8th March. They knew also from that letter that it was going to be based on my criticisms of the expert and their role in the judgment, and it was, despite that, their position that I did not know until 10am on 21st March why they said I should recuse myself.[23]There might be any number of reasons as to why that happened in this case. First, it is not inconceivable that this was done deliberately to give me a minimum amount of notice, so that I might be embarrassed into recusing myself. Second, it might just be a plain lack of consideration of my position. Third is the possibility that the application was only live after 20th March. I do not accept that latter possibility for the reasons I have set out. I have had no explanation from RC as to why they did not notify me of the potential application between the 8th and 19th March. It is as if, when one looks at Ms. Rylatt’s witness statement, the period between the 8th and 19th March was completely irrelevant. It was not.[24]As I have said, recusal applications are not like any other applications. They are addressed to the judge. They involve criticism of the judge, and he then has to deal with that criticism. As I have said, he cannot rely on the other parties to take points on his behalf. Indeed, as I have said, in cases like this, the other party often feels inhibited in appearing to be supportive of the judge, because it can count against them. As I have, in fairness, that was not the stance taken by the defendants.[25]I conclude that I was given minimal notice of this application and, in my view, I conclude, absent an explanation, that this was done to further obstruct the resolution of the wasted costs application and to put further obstacles in its process in the hope that further delay would put matters off. I also believe that the recusal application, if successful, could lead very easily to a fresh judge concluding that it was no longer appropriate for the wasted costs application to be considered because it had not been dealt with summarily. This is not unheard of. The courts have indicated, quite properly, that this procedure is a robust procedure which must be dealt with, in fairness, in a robust way, and should not become another mini-trial with huge accusations and counter-accusations.[26]The consequence is, of course, that, if I remove myself from the case, a new judge, before he can even consider the wasted costs application, will have to understand the nature of the claim which took place over ten days before me. He will have to understand the nature of Mr. Jones’ evidence and, to do that, he will have to read his four expert reports, his memorandum, he will have to read his cross-examination, he will have to read the comprehensive closing submissions, and he will have to then read the judgment and deal with the application. None of that, of course, is necessary for me, because I have delivered the judgment, I heard all the evidence and I have formed my conclusions, and they are fresh in my mind at the moment.[27]The difficulties which face judges with these applications was demonstrated by Jonathan Parker J. at first instance in Freudiana Holdings. That was a classic result, where the trial judge felt unable for various reasons, and I will come to that judgment in more detail later, to deal with the wasted costs application himself. He recused himself, but he also determined that, having first shown ex parte show cause, that should be discharged, because he did not believe the case could be disposed of fairly before any other judge. It is a classic attempt to hope that the case against RC can be kicked into the long grass, and the defendants would be deprived of having their application dealt with by someone who can deal with it on the merits.[28]I return to Mr. McPherson’s skeleton. In para.25, he gives what he describes of the particular aspects of the case that necessitate recusal. They are(a) that Mr. Jones did not understand his duties to the court, and(b) that such ignorance of his task was due to failings on the part of RC. At para.26, Mr. McPherson says this: “Bluntly, the judgment shows that any fair-minded and informed observer would conclude that there is a real possibility (a) that the judge had already made up his mind that the failings he found on the part of Mr. Jones were the direct result of fault of Rylatt Chubb, and so (b) Rylatt Chubb could not have a fair impartial hearing before the judge on the questions of (1) whether they were, in fact, at fault in their dealings with Mr. Jones, and (2) whether Mr. Jones’ evidence was given as it was because of fault on their part of for some other reason”.[29]When I ask rhetorically should a judge recuse himself? First, he plainly should recuse himself when his observations, his manner and his conduct of the case shows actual bias against the party seeking his recusal. Such is not alleged in the present application. The second case requiring recusal (and I accept that the judge has no discretion in this regard) is if the judge concludes that there is a real possibility that the fair-minded observer test will be infringed, he cannot, as a matter of discretion, conclude nevertheless that he should try the case. He must, of course, recuse himself. The fair-minded test is important, because it is important to see what it actually says. I take it from AB, R v. X Crown Court, at para.33, as summarised by Mr. Justice Hickinbottom: “If a fair-minded and informed observer would conclude that there is a real possibility that the judge has not had or will not in the future have such an impartial mind - and is, therefore, potentially biased in that sense - then the judge is unable to continue to deal with the matter (see Locabail [2001] 1QB 451)”.[30]Despite the importance of Locabail, it was never cited and has not been produced. There is always in this area a collision between the principle of a wasted costs application and an application for recusal. That collision arises because there can never be a wasted costs application unless it is made on the basis of some criticism of conduct, either by a party or a witness or the legal representatives. It is inevitable in the course of giving any judgment which gives rise to wasted costs application that there must be some criticism. On that, Locabail is instructive, and I refer to the quotations of Locabail to be found in the decision provided to me by the defendants of Oni v. NHS Leicester City Council [2013] ICR 91. The facts of that case are not relevant. But, if one looks at paras.20 through to 28 of, which should be read as set out in this judgment, that tribunal referred to what Lord Bingham said in Locabail: “There must be a real danger of bias that might well be thought to arise if, in a case where the credibility of any individual is in issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person’s evidence with an open mind on any later occasion or if on any question at issue in the proceedings before him the judge had express views, particularly in the course of the hearing in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective mind. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal”.[31]I accept that the burden on Mr. McPherson is to establish that my criticism of his client in the judgment was extreme and unbalanced, or possibly extreme or unbalanced. Merely because I criticised his clients is plainly not a basis for me to be recused. Mr. McPherson’s mantra throughout was to repeat what he said in para.26. In effect, bluntly, the criticisms I expressed of his clients in the judgment were extreme or unbalanced. Merely because he says it is so, and merely because he says it so again and again does not, in my view, make it so.

The need for criticism

[32]I have already observed that, in this area, it is a sine qua non that there has been criticism. Locabail and the later cases to which I refer reinforce that criticism is not, of itself, a basis for requiring recusal. It is equally clear that it is a question of fact in each case. In this case, there was no doubt that Mr. Jones was one of the worst expert witnesses ever to give evidence before me. Further, anybody reading his reports would see that they were patently not CPR 35 compliant. Thus, the defendants remind me that, despite the obvious inadequacies of the reports, RC were able to serve particulars of claim referring extensively to Mr. Jones’ first report, despite all its deficiencies, and sign a statement of truth to those particulars of claims.[33]The question for consideration in this case is how that inadequacy came about. I had the “advantage” of seeing Mr. Jones in action, both in writing and orally. I repeat what I said implicitly in the judgment; that I felt considerable sympathy for him. He was Ethiopian. He had never given evidence before. He was giving expert evidence on Ethiopian law, and was plainly entirely unfamiliar with the procedure of giving expert evidence within this jurisdiction, and did not, despite his Article 35 declaration, understand his role. RC, like any other person or organisation familiar with the procedures in this jurisdiction relating to experts, would clearly have seen from his written reports alone that they were not Article 35 compliant. This is para.229 of my judgment.[34]RC, of course, are not any person. They are the solicitors who allowed Mr. Jones to give the evidence in this way. Under the Expert Evidence Protocol, Article 7, they have duties as to the presentation of expert evidence. That is more of a stage one point than a question of a wasted costs application, but they do have explicit duties in this regard. They cannot simply produce an expert report or allow a party to rely on an expert report, and simply ignore the Article 35 obligations of that report.[35]The way in which Mr. Jones’ evidence was dealt with was the subject matter of considerable criticism directed at me by the claimants in their closing. Almost a third of Mr. Ashworth’s closing consisted of an attack on the way in which the whole application had been dealt with. As I said in the judgment, this was almost unique in my experience. It was a case of a party, as like the rugby analogy, wanting to get its aggravation in first, and did not even wait until the judgment to criticise me for the way in which the action had gone. That criticism, therefore, had to be dealt with by me in the judgment. As I have said in the judgment, it was almost unique in my experience of 11 years as a High Court judge, where a judge is required, in effect, to justify the procedures in his judgment; that was despite there never being any hint of criticism of the procedures in the previous ten days.[36]That necessitated dealing with Mr. Jones. The reason for that is that the claimants’ case stood or fell entirely on Mr. Jones’ reports. If Mr. Jones’ reports were not accepted, the claimants would not have any case at all. It is clear that he failed spectacularly as an expert, and I have already referred to the extensive criticisms of the contents of his reports, the manner of the reports and the manner of giving evidence, which clearly set out the inadequacies of the reports. Given that, it was necessary for me to deal with Mr. Jones’ evidence. Having seen him, read his reports and his evidence, and the way in which he argued the case in the witness box, it was simply all too obvious, in my view, that there was more to this than simply a poor expert.[37]I refer again to the details of his performance set out in the judgment. Nevertheless, having seen him, as I said in the judgment, I found in my view that he was honest and was, in reality, struggling to get his message across because of his lack of understanding. A good, but by no means only example was the reference to the Cassation Court decision of Fissehaye, which only emerged in cross-examination, the point having eluded him in his four previous reports. Once that point was teased out of him in cross-examination (although I accept that Mr. Ashworth, for some bizarre reason, criticised me for that), it was a point which found favour with me in the judgment. I accepted that, in the Fissehaye case, there was an arguable prospect that the claimants could take their outstanding and un-presented concerns to the Ethiopian courts and seek a review, despite the expiry of the 30 day time limit.[38]He told me in evidence that he had not been apprised of the potential consequences of him giving reckless or grossly negligent evidence. In this context, Mr. Ashworth’s objection to that question being asked is significant, in my view, and demonstrates an attitude of mind which is not constructive. Mr. Ashworth, of course, plainly did not understand the need for giving a warning. That was reinforced by him returning to this point in his closing. Mr. Ashworth plainly did not understand the collision between cases as to the giving of a warning. That was reinforced by him returning to this point in his closing. Mr. Ashworth plainly did not understand the collision between Symphony Group v. Hodgson and the Orchard case, as analysed by me in Phillips v. Symes.[39]Given my assessment of Mr. Jones, there was, therefore, a clear indication that he was not properly prepared and, on the evidence before me, I formed the view that that was because RC had not properly prepared him. I accept that I criticised RC in the six instances given by Mr. McPherson in his skeleton. But I reject his submission that such criticism was extreme, and I reject that it was unbalanced. Given my view of Mr. Jones, having seen him and having concluded that he was neither reckless nor grossly negligent, there was on the material before me no other basis for my conclusion than that he had not been properly prepared. I did have the evidence of the lack of warning. Coming to this conclusion was an essential part of the decision process necessary at trial. It would have been insufficient, in my view, given my assessment of Mr. Jones, simply to have heaped all of the criticism on Mr. Jones, and left him open to a wasted costs application himself. I did not believe, as I have found in this judgment, that he was reckless or grossly negligent. I believe that I have said in this judgment that he did the best he could, bearing in mind his limited understanding.

Consequences

[40]I regret to say that RC have completely misunderstood the basis of the defendants’ application. It is not on the basis of my various criticisms of the way in which RC were involved in the preparation and gestation of Mr. Jones’ reports, save in respect of para.229; namely that, however Mr. Jones’ reports were gestated, whether RC were involved in that or not, or whether RC directed or assisted in their preparation, the defendants’ submission is that it was inappropriate and unacceptable for RC to participate in this action and embrace Mr. Jones’ reports, when it must have been plain to them that his reports were not Article 35 compliant.[41]It is quite a short point. It involves simply analysing the extent to which a solicitor can distance himself from a bad report and a bad case, as opposed to crossing the threshold and being responsible for the presentation of a case that was plainly bad. This is not a new line of attack on solicitors, as I will set out below. However, as the defendants say in their skeleton, at para.7, RC are battling a case which is not being advanced. I accept that. I have always understood the basis of the defendants’ application. It was that RC should not have allowed Mr. Jones to give evidence and, if they were unable to avoid their clients insisting on Mr. Jones giving evidence, they should have withdrawn the case and not embraced it (see the defendants’ skeleton, at paras.21 to 23, and 23 in particular).[42]Solicitors who act in cases that are hopeless do not, by acting in hopeless cases, expose themselves to wasted costs application when the hopeless application fails. But they can, in the circumstances, be made liable for their participation in a case which was truly bad. If we look at the seventh (and I emphasis ‘seventh’) edition of Jackson & Powell, at paras.11-142 and 143, one sees a whole series of cases where solicitors have been held not liable or held liable where a bad case fails, depending on their involvement in the bad case.[43]This is the true and clearly stated basis of the defendants’ application. I accept their submission that a vast amount of RC’s submissions are based on a misconception. Mr. McPherson appeared to accept this in argument, and refined his submissions and suggested, in effect, as Mr. Spink said in his closing submissions, that the instances put forward in para.27 of his skeleton showed extreme statements on my behalf in a matter which was not relevant to the wasted costs application, but show, in effect, I had formed a view against RC. I reject that.[44]The fair-minded observer has to take into account the judicial duty to deliver a judgment on the issues before him. I delivered the judgment, I dealt with Mr. Jones’ evidence, and I concluded it was simply an inadequate analysis merely to criticise Mr. Jones’ evidence and leave it at that. Otherwise, Mr. Jones might well be the subject matter of wasted costs application himself, which I, having considered his evidence and his demeanour, felt would have been inappropriate. Having concluded that he was neither reckless nor grossly negligent, it is inevitable that I would then have to go on and decide how it was that his reports and evidence came to be delivered in such an inappropriate way.[45]It was, therefore, necessary to analyse how it was that Mr. Jones’ evidence came to be presented in the way it was. In discharging my duty as the trial judge, on the material before me, the inevitable conclusion was that it arose because he had not been properly prepared. I make no apology for saying that it looked like Mr. Jones had been exposed to the wolves. It certainly looked like that, and I hope the parties understand the sympathy I felt for Mr. Jones, struggling, as he was, to do what he thought he had to do.

Consequences

[46]I have not heard RC on the complaint against them. They will, as I said in argument with Mr. McPherson and he agreed, deal with it in a number of ways, including, if necessary, my criticisms as set out in para.27 of his skeleton argument, if they become relevant, even though the defendants do not rely upon them. RC will be able to deal with it in a number of ways: (1) With the benefit of a full waiver of any privilege, if privilege can be asserted, all the evidence could be put forward and they would be able to explain their position and role. I stress, of course, this will be dealt with summarily. There is no question of evidence or cross-examination. The second basis is that they might tell me that they are unable to tell the whole or even any part of the story that went on behind the scenes, because it is privileged and their client refuses to waive the privilege.[47]The authorities are clear on what happens then. They must be given the fullest benefit of the doubts, because it is otherwise unfair that they are subject to a wasted costs application, which they cannot fairly defend. If that is the case, then, if we go on to stage two, because this judgment was given before even we had considered stage one, they will be given the fullest opportunity to present their case as fully as they can and, if they are inhibited, I will, of course, give them the fullest possible benefit of that inhibition.[48]The third way in which they could deal with it, of course, is that they could accept the criticisms, but submit that those criticisms do not, of themselves, give rise to the necessary findings of their failings, so as to justify making a wasted costs order against them, because merely because there are criticisms, of itself, is not enough. It is the counterpart to the fact that I, as a judge, criticise them in discharging my duties as a judge of the trial of the issues. Whichever way it is put, RC have the fullest opportunity to present their case, and they will, if those criticisms become relevant, which I do not accept they are relevant because of the way in which the defendants put their case, then they will be able to lead such evidence as they are able to lead, and they will be able to, of course, seek to persuade me that, whilst my criticisms might have been correct on the material before me at the time, they are not necessarily correct in the light of the full evidence put before them.[49]There is nothing new about judges being asked to reconsider decisions in the light of changed circumstances or have being presented with a fuller picture. We must not lose, by analogy, sight of the fact that there is a possibility of the claimants coming back to court, if they are treated unfairly in the application to review, to seek to lift the stay, because, on the basis of that fresh material, my conclusions that they were fairly treated in the Ethiopian courts were demonstrably wrong. That is the same kind of thing. Equally, as I have said, if they are unable to present their case because of the inhibitions of privilege, they are fundamentally entitled to a just hearing, and they are entitled not to be punished when they are unable to present their side of the case.[50]On the facts of this case, in my view, their application that I should recuse myself is completely without merit. I do not accept that the repeated use of the word “extreme” by Mr. McPherson means that an analysis of my observations of their performance on the evidence before me is anything more than criticism. It is, in my view, reinforced in the way in which they presented and evolved this application, and I have set it out above; a long period before they decided to give me the cursory warning, a letter which was an improper letter and should not have been written in that form, and finally, presenting me for the first time with particulars in a skeleton argument. In my view, that is demonstrative of the fact that this application is being made for reasons other than merit.

Authorities

[51]Several authorities were cited to me as an interpretation between the wasted costs and a recusal, and I should deal with them. I do not in this analysis propose to say anything further about R v. X Crown Court, as the facts of that case were as far removed from this as it would be possible to be. I treat with respect what Hickinbottom J. says in his judgment, but Hickinbottom J. is, of course, a brother judge of the first tier. When I have guidance from the Court of Appeal, I need no further assistance from another judge at first instance.[52]The first case that I was referred to is Bahai v. Rashidian [1985] 1WLR 1337, a Court of Appeal decision. I will read the headnote of the two majority judgments, where the appeal against a decision of the trial judge not to recuse himself was dismissed, on this basis; that an application which should normally be determined by the trial judge, that a judge who criticises the conduct of the parties and witnesses, by emphasis, in a proper exercise of his judicial function could not be said to be biased. Accordingly, in the circumstances, the judge had rightly upheld his duty to adjudicate on the solicitors’ liability for the defendants’ costs. Lord Justice Parker delivered the dissenting judgment. In the judgment, there should be read out, as included in this judgment, pp. 1340(a) to (e), 1341(g) to (h), 1342 (b) to (c) and (g) to (h), 1343(b) to (d), and 1346(c) to (f). Due to time, I hope the parties will forgive me in not reading those out and prolonging the agony of this judgment.[53]But it is important, I think, just to see how hard Drake J. was on the solicitors’ witness. He said in his judgment that Mr. Harris, the solicitor who had given evidence, his conduct was deplorable, because it must be either gross incompetence on repeated occasions or an unhealthy desire to see the plaintiffs succeed and, if necessary, to use improper means to achieve that end: “I do not think his actions were wholly or at all due to gross incompetence. When he gave evidence, Mr. Harris confirmed my view that his overriding desire is to see his client win the case as he was prepared to act improperly if he thought it would assist. I form the view that Mr. Harris was prepared to and on occasions clearly did invent or embellish his evidence. I found him an extremely unsatisfactory unreliable witness”.[54]That would be quite damning as regards a lay-witness, but for a solicitor of the Supreme Court to be so condemned is quite extraordinary. If Drake J. was nevertheless held entitled to carry on the wasted costs application and not recuse himself in the light of such strong criticism, I cannot for the life of me see how my criticisms of RC, as expressed in my judgment, get anywhere near that level of criticism.[55]There was a debate between Mr. McPherson and I as to whether or not the solicitor was given an opportunity to acquit himself in the witness box. He gave evidence, that is true, but I do not believe it was put to him that his conduct was of the nature found by the judge. I find that from what is said at the bottom of 1341, para.8: “Mr. Lightman, on behalf of Mr. Harris, submits(a) the judge’s criticism of Mr. Harris amounts to saying that he had formed a provisional view that Mr. Harris was guilty of fraud, perjury, conspiracy, forgery and contempt of court, and(b) if the issue was not determined by another judge, Mr. Harris would have to rebut a case, maybe in proceedings to which he was not a party and where he had no right of cross-examination or of calling evidence on his own account. This involved the reversal of the normal burden of proof and, which is even more serious, a reversal in the context of criminal or quasi-criminal charges”.[56]It seems to me clear that he was not challenged on the basis of any of those matters, and they only appeared for the first time in the judgment. The Court of Appeal, of course, rejected his application to have Drake J. removed. The telling part of the judgment of Sir John Donaldson is at p.1342(h): “The fact that a judge has determined issues in action and, in so doing, has expressed views on the conduct of the parties and a witness neither constitutes bias nor the appearance of bias in relation to subsequent applications in that action”.[57]The next case I shall refer to is the case of Freudiana. I do not propose to read out the parts of this important judgment that I refer to: Pages 4, 5, 6, 7, 8, 17, 18, 22, 28, 29, 30, 34 and 35 are to be read into this judgment. Once again, the case, as Mr. Spink points out, was far removed from the present case and it was, in effect, started as an appeal which, of course, only turned on costs, as is often the case; an appeal against a judge who had recused himself, which must almost be unique in judicial history. As I said in argument, the idea that the party thinks it is a good idea to go to the Court of Appeal, when a judge has recused himself, and order the judge to take up the cudgels again is unbelievable. I could not for the life of me see how any part of that would ever apply. One can see when one reads the judgment as a whole, which is why I have referred to it extensively, that there are all manner of reasons why the procedure failed, mostly because of the way in which the appellants sought to go beyond the mere recusal part, but, in effect, to make the case beyond the capability of any judge hearing it, because of the complexity of the issues which they chose to introduce. As was said at p.18:
“The fundamental objection, it seems to me, to the decision to hear the wasted costs procedure was the way in which the appellant put his case”
. That was why the appeal ultimately was lost.[58]I would also, finally in this context, refer to the Oni case, and in particular p.96, which I have already set out.[59]Looking at those authorities, I draw the following conclusions. 1) A judge has a duty to discharge his judicial functions. In discharging those judicial functions, it can regularly involve delivering judgments which are critical of the parties and the witnesses. I am afraid that is part of the judicial function. In so many cases, ultimately cases are decided on the credibility of the parties and the witnesses. In cases like that, just like the present case, acceptance or rejection is not enough. 2) Such criticism cannot give rise to a basis for recusal, as the judge is discharging his judicial function. 3) On a wasted costs application, a judge who has heard the case is the only person who should hear such an application, because of his extensive knowledge of the case, despite criticism in the judgment, unless there is some exceptional reason to depart from that. Those are the words, of course, referred to in the Bahai case, which I have already set out. 4) Mere criticism is not sufficient. It must be extreme or unbalanced to lead a fair-minded observer to consider the judgment might not give the respondent to the application for wasted costs a fair hearing. 5) This is even if criticism addressed is addressed to witnesses, as opposed to parties. I reject Mr. McPherson’s submission that there is some kind of divergence. If there is an application against a party for a wasted costs order, then the criticism of the party in the judgment is not, of itself, a basis for the judge to recuse himself. If an application is against a witness for a wasted costs order, as the headnotes in the Bahai show, it is the same test. Mere criticism of that witness is not, of itself, enough for a judge to recuse himself. Equally, an application for a wasted costs order against solicitors arising out of criticisms of those solicitors in the judgment, which is, of course, a necessary precursor to any application, is, of itself, not enough to require recusal.[60]I have no hesitation, on those principles, in concluding that my criticism, as set out in para.27 of Mr. McPherson’s skeleton, is (and this is most important from the defendants’ point of view): 1) Irrelevant to their application because they do not base their application on that criticism. 2) Even if it is, it was part of my judicial function in trying to find out how Mr. Jones came to give the dreadful evidence that he did. 3) I am fully aware that I have not heard RC’s version of this and, for the reasons I have already adverted to, I might never hear. However, all of those are factors to consider at later stages. I have heard nothing, in my view, to suggest that Mr. McPherson’s categorisation of my criticism of his client is so extreme and unbalanced as to require me to recuse myself, and I reject it. It is, as I have already said, an application without merit.[61]RC, who, of course, as a firm of solicitors, are well-known to me and have appeared regularly in these courts in front of me, and indeed, have appeared virtually exclusively in front of me since the end of October in a number of cases, ought to know full well that I strive to give everybody the fairest opportunity to defend themselves in respect of any allegation. This is to ensure that parties who leave a court where I am the judge, whatever the result, are able to say they had the fullest opportunity to present their case.[62]I am and remain open to persuasion, if RC are able to do that, bearing in mind their potential restrictions, for them, if it becomes relevant, to persuade me that, on the fresh material that they would put forward, my criticisms of them were wrong, and to such an extent, in the alternative, that they do not give rise to a basis for an application for a wasted costs order. If they are unable properly to present their case for the reasons that I have already said, they would be given the fullest possible credit for that inhibition. I am not in the game of beating solicitors over their heads, because solicitors often have difficult jobs.[63]This case, to my mind, involves a simple question. Given the inadequacies of Mr. Jones’ reports, were they justified in continuing the case and putting forward the reports, or should they have refused to do so? That, to my mind, is the only issue and it is a judgment call. A judgment call does not give rise, of itself, to a successful application for a wasted costs order, because far more than that is required. This is all for the future, and nothing in my judgment is written in stone. It cannot be, because I have not heard them.[64]So, for all of those reasons, I decline to recuse myself.