BCD v Simons Muirhead Burton LLP [2026] EWHC 1594 (KB)

Case No KA-2025-000144

NCN: [2026] EWHC 1594 (KB)

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

Venue Royal Courts of Justice

Date Wednesday, 20 May 2026

Strand

London WC2A 2LL

Before

MRS JUSTICE STACEY

Between

BCDClaimant

SIMONS MUIRHEAD BURTON LLPDefendant

for The Claimant did not appear and was not represented

MR STEER (instructed by Reynolds Porter Chamberlain) appeared for Defendant

JUDGMENT

Digital Transcription by Epiq Europe Limited,

Lower Ground, 46 Chancery Lane, London WC2A 1JE

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[1]MRS JUSTICE STACEY: This case comes before the court on the Appellant's appeal against the order of Master Yoxall dated 4 July 2025 following a hearing which took place on 15 January 2025 which considered a number of applications made both by the Appellant and the Respondent. The Appellant, who was granted anonymity and has the cipher of BCD, was the Claimant below, and the Respondent to the appeal, the solicitor's firm, Simons Muirhead Burton, LLP, was the Defendant at first instance. There is also before me an application by the Respondent to allow a second witness statement to be served, and an application by the Appellant for Mr Jack Steer, counsel below and counsel before me today, to give evidence of fact as to what happened at the hearing on 15 January 2025.

[2]In a reserved judgment following the hearing on 15 January 2025, Master Yoxall firstly dismissed the Appellant’s application that the solicitor's firm, Reynolds Porter Chamberlain, be disqualified from representing the Respondent and declared the application to be totally without merit. Secondly, Master Yoxall dismissed the Appellant's application that the Respondent file a defence which he also declared to be totally without merit. Thirdly, Master Yoxall gave summary judgment granting the Respondent’s strike out application. Fourthly, he ordered the Appellant to pay the Respondent’s costs on an indemnity basis, to be subject to a detailed assessment if not agreed, ordering the Appellant to pay £40,000 on account by 18 July 2025. Finally, he refused permission to appeal.

[3]The case has a complex procedural history which it is not necessary to set out for the purposes of this judgment. One single ground of appeal has been granted permission to go before today’s full hearing:

"Fundamental procedural unfairness: Breach of Article 6, European Convention of Human Rights and Civil Procedure Rule 1.1. The hearing on 15 January 2025 was conducted in a manner that deprived the Claimant of his right to a fair hearing. The Claimant, who is a Russian asylum recipient with limited English, relied on an interpreter he had arranged himself. However, the interpretation was grossly inadequate. By the Claimant's conservative estimate, approximately 80 per cent of the extensive discussions between the defendant's counsel and the court were not translated to him at all. The remainder was translated partially and inaccurately. The Claimant did not understand the case against him and was unable to respond or participate effectively. The Claimant raised this issue with the court on four separate occasions during the hearing. These objections were disregarded. No transcript or official record of the hearing was prepared, thereby further impeding the Claimant's ability to appeal."

[4]Other grounds were refused permission and it is not necessary to set them out, nor is it necessary to set out the grounds of appeal sought against earlier orders of the judgment of Master Yoxall, on which permission was also refused. But to assist the Appellant's comprehension of the scope of the permitted appeal, this hearing is not dealing with the Master's decision to refuse the Appellant's request to be sworn in and give oral evidence (we will see that in a later statement of the Appellant's, he raises the issue of the interpreter not himself giving an oath); permission to appeal was not granted on grounds that the audio equipment was not working properly and so the transcribers were unable to produce the transcript for the 15 January 2025 hearing; and the various criticisms of Master Yoxall's handling of the case set out in the complaint made by the Appellant to the JCIO are not part of the appeal. This appeal is limited to the single ground of the inadequate translation.

[5]Directions were made in preparation for the appeal hearing today, including that the Respondent was ordered to file and serve any evidence, giving its account by 26 November 2025, and the Appellant to file evidence in response by 24 December 2025, and so we can thus see that sequential directions were made as to the giving of evidence and liberty to apply for further directions and to vary the timetable was provided for by the order of Birt J in his order giving permission to appeal on the single ground. At today's hearing the Appellant has not appeared. He wrote in advance of the hearing to explain that no discourtesy to the court was intended, the appeal has not been abandoned, but he has nothing further to add to his written submissions and witness statements served previously.

[6]I shall first deal with the two applications before me. The Appellant seeks Mr Steer to provide evidence about what happened at the 15 January 2025 hearing. No formal approach has been made to Mr Steer, and the application, such as it is, is not in the correct procedural format. It is described as being a request rather than an application, and the correct form has not been submitted. Mr Steer has explained that had he been approached, he would have declined a request to participate, the solicitors who instruct him have chosen not to call him as a witness, and he has been scrupulous in ensuring that his skeleton argument and all his submissions before me today do not purport to give any evidence whatsoever or give his view of what took place at the hearing but he has strictly limited his submissions to the legal submissions and the facts that are apparent or can be inferred from the evidence which has been served. I reject the Appellant's application for Mr Steer to give evidence both on procedural grounds – non-compliance with the CPR but also substantive grounds: Mr Steer cannot be compelled to be a witness and he has declined to be one.

[7]The second application is by the Respondent to the appeal for the interpreter, Mr Dmytro Tupchiienko, to prepare a second witness statement, which has been served on the Appellant, to form part of the evidence before me. The explanation provided for the application is that Mr Tupchiienko's second witness statement was necessary to respond to specific allegations made by the Appellant that only became apparent in his witness statement that was served after the Respondents had been required to serve their witness evidence. The Respondent could not have known of it sooner because of the sequential order referred to above. The allegations made in the Appellant's witness statement of 25 November 2025 would go unanswered if Mr Tupchiienko was not permitted to respond to them, and as a qualified and professional interpreter who is facing allegations of poor performance (if not incompetence) in the conduct of his interpretation services on 15 January 2025, it would, it was submitted by Mr Steer, be quite improper for him not to have the chance to respond to them, and the court will not have the full picture if his statement is not adduced in evidence.

[8]I agree that it is in the interests of justice for Mr Tupchiienko's second witness statement to be adduced and I grant the application in the exercise of my case management powers. It deals with new allegations that he could not have been expected to have covered in his first witness statement because they had not been made at the time that he provided his first statement.

[9]Following the judgment of 4 July 2025, the Appellant requested a transcript of the hearing in support of his appeal. The transcribers were unable to produce a record of the hearing because either the recording equipment in the Master's corridor was not working or the quality was so inadequate as to be inaudible and it was simply not possible for the transcribers to provide a record of the proceedings. This is disappointing and to be regretted. The Respondent's solicitors shared their contemporary typed note of the hearing that had been prepared by the solicitor sitting behind counsel, a Mr Jamie Ainsworth, who is a senior associate at Reynolds Porter Chamberlain, and he has exhibited his note of the hearing to his witness statement of 25 November 2025. This was provided to the Appellant on 22 October 2025. Within eight minutes of the Appellant replied by email rejecting the contents of the note. However he provided no specific details of which parts he objected to, why they were in accurate and he did not engage at all with the detailed account that had been provided by Mr Ainsworth. His letter rejecting the note describes it as containing statements which are demonstrably false, wholly inconsistent with the factual record and include invented dialogues and narratives that never took place.

[10]The solicitors for the Respondent were threatened with a formal application for contempt of court if the document was to be presented to the court as an accurate account, and the solicitors were told by the Appellant that the gravity of such conduct cannot be overstated, and they were reminded that misleading the court constitutes a serious abuse of process and may give rise to personal consequences for those responsible. They were also informed that the matter would be referred to the Bar Standards Board and the Solicitors Regulation Authority and that any such document could be relied upon in court proceedings. The Appellant has never engaged with the detail of the note or said which parts he considers are inaccurate and what he considers to be a more accurate reflection of what took place during that hearing. Mr Ainsworth's note is detailed, however it does not distinguish between when the Claimant is speaking in person and directly to the court and when the Claimant is speaking through an interpreter. I infer that this is because the note is the note that was taken contemporaneously during the hearing and he was unaware that the accuracy of the interpretation would become such an important issue. He uses the abbreviations of CL and CI and at some points C, all capitalised, at various times in the note, but there is nothing in his witness statement that assists with distinguishing when the Claimant is speaking personally from his own mouth and when he is using the services of the interpreter.

[11]The interpreter instructed by the Appellant was Mr Dmytro Tupchiienko, who spoke Russian and interpreted Russian for the Claimant who provided a witness statement on 24 November 2025 describing his recollection of the hearing. He set out his instructions and he explained in his witness statement that he had not received any complaint or expression of dissatisfaction from the Appellant following the hearing on 15 January 2025. He said that his recollection was that the Appellant had understood the proceedings well when he was translating for him, and his understanding was that the Appellant's ability to speak or understand English generally was pretty good. He explained that his English-speaking ability, as far as he could remember, allowed the Appellant to follow quite closely all conversations between the other party's solicitors and the judge being held during the hearing. He would regard the Appellant as fluent, and in his opinion, the Appellant can both speak and comprehend spoken English to at least level B2. The Appellant disputes his level of English and considers that, although he received a merit for B1, he struggles with oral English, although his written communications demonstrate a higher level of comprehension and articulacy and fluency in English to that that he can deliver orally.

[12]In the Appellant's witness statements, which consist of witness statements of 21 July 2025, 24 October 2025 and 25 November 2025, he repeats his assertion that he had translated for him only 20 per cent of the hearing and that he could not follow or understand the proceedings and that he raised on at least four occasions directly with the judge his lack of comprehension. In his 25 November 2025 witness statement, he made specific allegations. He said that he had a medical condition, a congenital auditory defect which made it hard for him to hear and understand and speak English, and not a jaw injury, as was recorded by the judge and in Mr Ainsworth's note. He complained that the interpreter had not been sworn in despite his request for him to be sworn in. He reiterated that there were extended periods of no interpretation, that he had the proceedings inadequately summarised for him, legal argument was omitted, that he had attempted to raise the problem during the hearing but it was ignored, and he further stated that his swift complaint within 48 hours of the hearing about the translation services was demonstrative of the genuineness of his complaint, because at that stage he did not know the outcome of the strikeout application.

[13]The witness evidence on behalf of the Respondent, as already stated, consisted of the two statements of Mr Tupchiienko and one statement of Mr Ainsworth exhibiting the notes he had taken during the hearing. The second statement of Mr Tupchiienko records that he had no recollection of the Appellant raising a medical issue prior to or during the hearing or of him saying that he suffered from a congenital auditory defect which affected his ability to understand spoken English. He recollected nothing that was suggested to him that the Appellant was unable to speak or participate properly due to any medical condition. He reiterates that he does not recollect the Appellant making any complaint about the quality or adequacy of translation and that he provided the translation and interpretation services as needed during the hearing and that at no point did the Appellant indicate he did not understand what was being said or required additional translation beyond what was being provided. He also recollects there were times when the Appellant spoke directly to the judge and the other party without waiting for interpretation services, which indicated to Mr Tupchiienko that the Appellant was following the hearing well. No complaint was raised in open court or afterwards, and repeated that his recollection was that the Appellant spoke English quite well from what he observed during the hearing. Mr Tupchiienko also appended his CV to his first witness statement, and in that CV he appears to be well qualified as an interpreter and is a member of the appropriate regulatory body and has a range of other activities and legal and paralegal and arbitration background and experience. Mr Tupchiienko was chosen by the Appellant from a list of authorised interpreters provided by the Ministry of Justice.

[14]I have not yet dealt with the underlying subject matter of the proceedings below. They are of limited relevance to this appeal given the nature of the ground of appeal permitted to go forward. But by way of background and context, the Appellant's claim against the Respondent was a claim for breach of contract and in the tort of professional negligence. The Respondent had been instructed by the Appellant in a claim against his previous solicitors, Blokh Solicitors and Mr Adrian Berry (counsel instructed by Blokh Solicitors on behalf of the Appellant). Blokh had been instructed by the Appellant in connection with a complaint he wished to file with the European Court of Human Rights in 2016 following his conviction for bribery in his absence by the Moscow City Court, which he hoped to have overturned on Article 6 grounds so that he and his family would be able to return to Russia and resume their lives there. In the meantime he had been granted leave to remain in the UK as an asylum seeker. The Appellant had first instructed Withers LLP to pursue his complaint against Blokh and take over his complaint to the European Court of Human Rights, but in March 2017 he parted company with Withers LLP and instructed the Respondent firm of solicitors in their place. In the Appellant’s professional negligence and breach of contract claim against Blokh, Blokh had briefly been represented by Reynolds Porter Chamberlain to defend them, before they changed representation to Clayton Solicitors. The Appellant then became dissatisfied with the representation by the Respondent, Simons Muirhead Burton, and initiated proceedings against them as a litigant in person, and Reynolds Porter Chamberlain were instructed by Simons Muirhead Burton to defend the Appellant’s claim against them.

[15]The strikeout application brought by the Respondents and on which Master Yoxall ruled on 4 July 2025 found that there were no reasonable prospects of the Appellant's claim succeeding. One of the criticisms made of the Respondent by the Appellant was that they had not instructed the expert evidence necessary to support his claim, and he claimed for breach of contract and loss of a chance. Master Yoxall found that obtaining expert evidence was outside the scope of the contract between the Appellant and the Respondent and was doomed to fail as a cause of action. He also ruled that there was no loss of a chance, because the Appellant was still well within the time limit to bring proceedings himself and there had therefore been no loss of chance.

The judge deals with it clearly at paragraph 73 of his judgment:

"That allegation has no real prospect of success. He could have issued proceedings, if necessary, acting in person - as he has done in the present proceedings."

[16]The paragraphs following, 74 to 77, set out the judge's reasoning in full, in which it can be seen that he took a very dim view of the merits of the case. “74. In paragraph 55 of the Particulars of Claim, the Claimant pleads: The Claimant hired SMB to prepare a letter of claim and obtain two expert opinions, which were to be used as evidence in a lawsuit against Blokh Solicitors and Adrian Berry. SMB delayed the preparation of the claim for more than a year, citing ongoing work with the experts, and ultimately refused to provide the expert opinions. As a result of these delays and refusal, the Claimant lost the opportunity to obtain litigation funding as was unable to file the claim against Blokh Solicitors and Adrian Berry in time.75. I consider the assertion that the Claimant lost the opportunity to obtain litigation funding – and more particularly that the Claimant was unable to file the claim, to have no real prospect of success. The Claimant had over 3 years to issue a claim against Blokh and/or Mr. Berry. It is inconceivable that a trial judge could find that SMB caused the Claimant’s loss of opportunity to bring the claim.

76. The Claimant alleges that the SMB delayed about 4 weeks in sending a letter to Caytons Law in relation to Blokh’s breach of contract and dissemination of the confidential asylum documents. SMB deny any delay on their part and deny causing any loss. In so far as the Claimant had a discrete breach of contract claim against Blokh for the dissemination, the Claimant retained the right to pursue Blokh. In so far as the Claimant had a direct claim for loss against SMB for the delay in sending the letter to Caytons Law (to address Blokh’s dissemination) that claim has no real prospect of success. The Claimant has failed to particularise the losses alleged to arise from the delay. It is difficult to see that any losses were caused. Indeed, the Claimant’s case is that the losses he sustained from the dissemination of the confidential material were devastating and immediate. There are additional problems. The Claimant has failed to plead what was disseminated by Blokh and when and how the consequences of Blokh’s alleged dissemination could have been avoided by swifter action by SMB.

77. In the circumstances, I consider that the Claimant has no real prospect succeeding on the claim and there is no other compelling reason why the case should be disposed of at trial. Accordingly, I shall give summary judgment for the Defendant and dismiss the claim.” The Claimant hired SMB to prepare a letter of claim and obtain two expert opinions, which were to be used as evidence in a lawsuit against Blokh Solicitors and Adrian Berry. SMB delayed the preparation of the claim for more than a year, citing ongoing work with the experts, and ultimately refused to provide the expert opinions. As a result of these delays and refusal, the Claimant lost the opportunity to obtain litigation funding as was unable to file the claim against Blokh Solicitors and Adrian Berry in time.

[17]A final fact worth noting is that in correspondence prior to the hearing on 15 January 2025, the Appellant explained that:

"I have not yet decided whether I will represent myself alone or request the court to provide an interpreter. While I speak English well, I believe it might be more appropriate to have a professional interpreter. I will make a final decision and inform you in due course along with a request to the court if necessary."

The Law and discussion

[18]The law in considering an application of this type is set out in CPR 52.21(3). When determining an appeal:

"The appeal court will allow an appeal where the decision of the lower court was— (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court."

[19]The ground of appeal in this case is predicated on the second limb of paragraph (3): it is unjust. The test is whether it is unjust because of a serious procedural or other irregularity in the proceedings in the lower court. The Appellant’s argument as he has forcefully argued in his skeleton argument, is that the shortcomings, faults and defects in the interpretation process mean that he could not have a fair hearing because he could not follow what was happening. He could not therefore properly represent himself and the injustice is such that there should be a re-hearing ab initio with him being able to participate fully and effectively in the matter he sought to bring before the court.

[20]The law is uncontroversial. It is not enough for an Appellant to show that there has been an irregularity. It must be serious and it must have caused injustice to the affected party; see Keith Davy (Contractors) Ltd v Ibatex Ltd

[2001] EWCA Civ 740

at paragraph 20. That is all that it is necessary to say about the law in this area.

[21]It is of course for the Appellant to establish the serious procedural irregularity. However the Appellant has not identified any specific matters of misunderstanding and has relied on generalisations and assertions.

[22]I have studied carefully the note prepared by Mr Ainsworth, which I accept as being reasonably accurate. The note shows that the Appellant was able to engage either directly himself or through his interpreter (it matters not which, the outcome is the same either way) with the proceedings. This is demonstrated by the articulacy and relevance of the interruptions made by the Appellant at various stages during the course of the hearing and his active engagement and ability to answer the questions posed of him by Master Yoxall. The note has a fluency, and there is no disconnect between the dialogue from the Claimant/Claimant's interpreter (as he was below) and the responses from either Master Yoxall or Mr Steer as the Respondent's advocate. If we look for example at pages 677, 675, 686 and 687, we can see that the dialogue flows in a way that it can easily be inferred that there is understanding and comprehension from the Appellant.

[23]There are two references to the Appellant misunderstanding matters in the note at page 677 and 689. It is clear from the context that what the Appellant is not understanding is not the language used, but the law. His concern is of not understanding particular legal concepts that Master Yoxall is seeking to explain to him, not that he is not understanding the literal words through lack of adequacy of translation.

[24]I also note from both the judgment produced by Master Yoxall and the notes of Mr Ainsworth that the Master reminded Mr Steer of the need to pace his advocacy so that the interpreter would have time to interpret and relay what was being said to the Appellant. That shows to me a judge who is very cognisant of the fact that an interpreter is being used and of the need to make sure that there is time for the interpretation to take effect so that the person for whom the interpretation services are required can effectively participate and follow the proceedings and understand what is going on.

[25]The other relevant feature to be gleaned from the evidence is that the Appellant has failed to engage with the note prepared by the Respondent to say which bits he says were wrong and which bits are not understood. Now, we cannot know how much interpretation was being quietly given by Mr Tupchiienko when Mr Steer was speaking. That of course will not be recorded in Mr Ainsworth's notes, but the fact of the interventions and interruptions and contributions made by either the Appellant or his interpreter show that the Appellant was following proceedings and that the interpreter must have been given time to hear what the Appellant wanted to say and to then repeat it in English for the benefit of the court. It is also troubling that although the Appellant states that on at least four occasions he raised with the judge that he was not following because of poor interpretation services, that is nowhere recorded in Mr Ainsworth's note or in the judgment of the Master. I conclude that if those issues had been raised they would have been written down as having occurred.

[26]As to the suggestion that a swift complaint demonstrates a genuine complaint, this does not follow as a general principle. In any event in this case the Appellant already knew during the course of the hearing that his two applications had failed, which had been dealt with robustly by the judge. The only two matters decided during the hearing had gone against the Appellant, so the fact that he did not know at the hearing that his applications were being certified as totally without merit and that the Respondent’s strikeout application would succeed does not assist in the argument. So I do not infer that the swift complaint is an indication of a genuine complaint.

[27]I conclude that there is no procedural or other irregularity that has been demonstrated or shown to the court by the Appellant, either serious or otherwise, and that there are no grounds for concluding that the judgment and decision was unjust, and the appeal does not come within 52.21(3)(b). Nor can it be shown that it was wrong. In any event, the underlying merit of the strikeout application was overwhelming for the reasons set out by the master in his careful and cogent judgment handed down on 4 July 2025.

[28]I will say briefly something about the delay between the 15 January hearing and the handing down of the judgment some six months later. There was nothing sinister in that and the judge wrote his judgment promptly, immediately after the hearing. The judgment was given to the parties in draft in around early February for corrections in the normal manner. The reason for the delay in the hand down and promulgation till the end of July was because of the complaints and concerns and matters being raised by the Appellant and not through any delay or tardiness by the judge.

[29]So for the above reasons I dismiss the Appellant's appeal. Epiq Europe Limited hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk