Adams v The Law Society of England and Wales & Ors [2012] EWHC 980 (QB)

[2012] EWHC 980 (QB)Case No HQ10X03054
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/04/2012
Before
MR JUSTICE FOSKETT
Between
NIGEL BARRY ADAMSClaimant(1) THE LAW SOCIETY OF ENGLAND AND WALESDefendants(2) ALISON CRAWLEYDefendant(3) DAVID MIDDLETONDefendant(4) MICHAEL CALVERTDefendant(5) ROBIN PENSONDefendant(6) CAROLINE GILESDefendant(7) DEREK JOHNSTONDefendant(9) NICHOLAS HEELAMDefendant(9) SUSAN FAULKNERDefendant(10) CAROL FEATHERSTONEDefendant(11) ANDREW BAINDefendant
Nigel Adams (in person) for in personJames McClelland (instructed by Field Fisher Waterhouse LLP) for DefendantsHearing Hearing dates: 20 and 21 March 2012
Judgment

Introduction

[1]The Claimant, Mr Nigel Adams, obtained a Bachelor of Laws degree from the London School of Economics in 1974 and qualified as a solicitor in 1978. Prior to setting up his own practice in 1984 he had been associated with two well-known London firms of solicitors. From 1984 until the events of 2004 with which this case is concerned he had practised as a sole practitioner for about 20 years under the practice name of Nigel Adams & Co. He had practised from various addresses, but by 2004 he was practising from his home address.[2]In 2004, and in circumstances to which I will return, his sole practice was the subject of an intervention under the Solicitors Act 1974. Very nearly 8 years down the line there are still unresolved issues arising from that intervention. It is those unresolved matters that have brought the parties before me in what are effectively cross-applications in litigation – or, perhaps more accurately, I should say ‘proposed litigation’ – commenced by Mr Adams against the Law Society and 10 other named individual defendants who were all employees of the Law Society at the time of the intervention.[3]Mr Adams, by an Application Notice dated 24 June 2011, seeks to extend time to serve his Claim Form and to file and serve his Amended Particulars of Claim or, by way of alternative relief, he seeks permission to appeal against (and if permission is granted to set aside) an order made by Master Eyre on 14 April 2011 by which he was refused permission to extend time for filing his draft Amended Particulars of Claim.[4]By an Application Notice dated 1 September 2011 the defendants seek an order striking out the Claim Form and, should they be filed and served, striking out Mr Adams’ proposed Amended Particulars of Claim pursuant to CPR r 3.4(2)(a) and/or r 3.4(2)(b) and/or for summary judgment dismissing his claims pursuant to CPR r 24.2.[5]Since the commencement of the litigation it is right to record that Mr Adams has agreed to discontinue the proceedings against the 5th and 11th defendants (Mr Penson and Mr Bain). It follows that if the result of the applications before me is to permit the proposed action to proceed then, subject to any other orders made about other parties, the order made will provide for the discontinuance of the proceedings against those two defendants with no order as to costs.

Grounds for intervention and the effects of an intervention

[6]The circumstances in which the Law Society (through the Solicitors Regulation Authority – the ‘SRA’) may intervene in a solicitor’s practice are set out in Schedule 1 to the Solicitors Act 1974, the material parts of the current version of which read as follows: “1 (1) Subject to sub–paragraph (2), the powers conferred by Part II of this Schedule shall be exercisable where— (a) the Society has reason to suspect dishonesty on the part of - (i) a solicitor, … in connection with that solicitor’s practice … … (c) the Society is satisfied that a solicitor has failed to comply with rules made by virtue of section … 32 …” …[7]Some parts of those provisions were amended by virtue of the Legal Services Act 2007, and thus post-dated the intervention in this case, but the material parts have not changed in substance. So far as sub-paragraph (c) is concerned, the rules there referred to include the Solicitors Accounts Rules made under section 32 of the Act.[8]Mr Adams has drawn my attention to extracts from the 2011 edition of “The Solicitors Handbook”, the relevant parts of which have been written by Mr Andrew Hopper QC and Mr Gregory Treverton-Jones QC both of whom have considerable experience in this area. They describe in Chapter 16 what happens when an intervention occurs. I will borrow from what they say and paraphrase in some respects.[9]Once a resolution to intervene is made (as to which I will return in more detail later) the intervention resolution results in the suspension of the solicitor’s practising certificate, vests all sums of money held by or on behalf of the solicitor or his firm in connection with his practice, and the right to recover or receive those sums, in the SRA. As the authors put it, “in short, the SRA takes control of office and client accounts”. The intervention resolution also results in a notice to the solicitor or his firm requiring the production or delivery to any person appointed by the SRA of all documents in the possession of the solicitor or his firm in connection with his practice. Those two powers are the essential powers wielded by the SRA, but the authors describe in paragraph 16.11 what they describe as “The practical reality”. It is, perhaps, worth recording precisely what they say:
“The legal department of the SRA, which manages interventions, appoints an intervening agent, a solicitor who is a member of the SRA’s intervention Panel practising in the relevant area, who will take direct responsibility for (in particular) client files. Provisional arrangements may be made in advance of the intervention resolution when it can reasonably be expected to occur. Notice of the intervention will not be given to the solicitor (even if the Panel has resolved on the intervention some days before) until the agents are ready to act and the solicitor’s bank has received notice. The solicitor will therefore not know of the intervention until after his or her bank accounts are frozen. The first that the solicitor will typically hear of the decision will be by a cryptic telephone call from the SRA requesting him to stand by his fax machine to receive an important communication. This is likely to be in the late afternoon when the agents and representative of the SRA are due to arrive at the firm’s offices the following morning. The intervening agents attend at the solicitor’s address and take possession of the practice documents which in most cases are removed without delay. Matters which are urgent and require prompt action are identified and (hopefully, assuming the solicitor’s cooperation) discussed. Practice moneys are transferred to a bank account under the control of the intervening agents. The intervening agents attempt to bring the practice’s accounting records into proper order. Clients will receive a standard letter informing them that the SRA has been obliged to exercise its statutory powers and inviting them to nominate successor solicitors or, if appropriate, to accept the delivery of their papers themselves ….”
[10]The authors go on to say that the intervening agents do not take over and run the practice. Their role is to ensure that all clients are informed of the intervention and find alternative solicitors and that the practice moneys are distributed properly.[11]The authors, somewhat graphically, say this of the effect of an intervention on the solicitor made subject to it:
“The description of an intervention as striking a mortal blow to the practice [this being a reference to the case of Giles v Law Society [1995] 8 Admin LR 105, CA] is, if anything, an understatement. Quite apart from the automatic suspension of the practising certificate, the solicitor loses control of the practice’s bank accounts and the practice’s documentation. It instantly becomes impossible to service any bank overdraft. Unless the intervention is rapidly reversed by the court, the solicitor’s practice is lost without any compensation, and the solicitor faces almost inevitable financial ruin.”
[12]I will return shortly to what a solicitor can do to challenge an intervention, but would simply add this additional feature as one of the consequences of an intervention: the intervention costs represent a debt due from the solicitor or his estate unless the High Court orders otherwise. The authors indicate that these costs can easily amount to £100,000 or more. Indeed in the present case the costs were £113,680.[13]It is abundantly clear that extremely serious consequences arise in relation to a solicitor made the subject of an intervention.

The grounds relied on in this case

[14]The intervention in Mr Adams’ case arose from what was said by or on behalf of the Law Society to be “reason to suspect [his] dishonesty” and from the Society being satisfied that he had failed to comply with the Solicitors Accounts Rules in a number of respects. He accepted that there were some inadvertent breaches of those rules, but rejected vehemently any suggestion of dishonesty. It should, perhaps, be recorded that no actual allegation of theft of clients’ money was made against him, as unfortunately has occurred in other cases from time to time. However, the suggestion of a reason or reasons to suspect “dishonesty” in connection with his practice was made arising from matters to which I will refer later. It is that matter that has driven his attitude towards the Law Society and those within the Society who were instrumental in advancing it as a reason for the intervention. It is quite plain from the way he has expressed himself in the voluminous papers before the court and in his submissions to me that, to this day, he feels a very strong sense of injustice about the way he was treated at the time, the net result of which has been, on his case, the destruction of his practice, his livelihood and indeed, from his perspective, his good name. I will return to the foundation for that state of mind in due course.[15]I should say this before continuing further in the judgment: I will have to be critical of some features of the way Mr Adams has conducted his case in the applications before me. However, he is plainly an intelligent and articulate man with a good working knowledge of the law. He presented his oral arguments for the most part persuasively and with courtesy. On occasions he expressed himself in emotional and strongly-worded terms. He will, I am sure, be the first to accept that he can be verbose and that his written material is unnecessarily lengthy and in many respects repetitive. In one of his many witness statements he concedes that he sometimes has difficulty seeing the wood for the trees. Prior to the hearing I had anticipated the appearance of Leading Counsel on his behalf because the date was fixed with the convenience of Mr Hugh Southey QC in mind, but in the event Mr Southey did not appear. At all events, notwithstanding that in the event he represented himself before me, he undoubtedly has had the advantage of recent advice from experienced Counsel, including Leading Counsel, and was able to advance the appropriate arguments fully and properly, both orally and on paper. He has not, to my mind, been disadvantaged at all be presenting his case himself. I might add that he paid a generous tribute to the skill and fairness with which Mr James McClelland, Counsel for the defendants, had conducted his part of the proceedings, a tribute which I am pleased to echo.[16]I should also say that it will be quite impossible for me to reflect on every issue that Mr Adams has sought to raise, either orally or in the vast number of pages of paper before the court. He suggests that the report and Case Note which form the main objects of his attack contain many mistakes and multiple instances of what he describes as “non-disclosure” – including 46 in respect of the “£95,000 issue” (see paragraph 45(i) below) and 21 in respect of the “£4500 issue” (see paragraph 45(ii) below). I will have to confine myself to those matters that I consider the most pertinent to the issues I must decide. Merely because I do not refer specifically to an issue does not mean that I have not considered it, simply that I do not think that it advances his arguments any further. There is, to borrow an expression from Mr Gibson’s witness statement of 1 September 2011, a “morass of detail” in the papers before the court. It is important to focus on the most important details given the nature of the applications before me.[17]I will return to the matters that gave rise to the intervention shortly, but it would be appropriate to record what the law provides by way of an opportunity on the part of a solicitor who finds his practice the subject of an intervention to challenge the intervention.

Challenging an intervention

[18]The following provisions appear in paragraph 6 of Schedule 1 to the 1974 Act:
“(3) The Society shall serve on the solicitor or his firm and on any other person having possession of sums of money to which this paragraph applies a certified copy of the Council’s resolution and a notice prohibiting the payment out of any such sums of money. (4) Within 8 days of the service of a notice under sub–paragraph (3), the person on whom it was served, on giving not less than 48 hours’ notice in writing to the Society and (if the notice gives the name of the solicitor instructed by the Society) to that solicitor, may apply to the High Court for an order directing the Society to withdraw the notice.”
[19]The approach of the court to an application made under paragraph 6(4) above has been considered. In Dooley v Law Society (unreported) 15 September 2000, Neuberger J, as he then was, said that the court applied a two-stage test:
“First it must decide whether the grounds … are made out; in this case, primarily, whether there are grounds for suspecting dishonesty. Secondly, if the court is so satisfied, then it must consider whether in the light of all the evidence before it the intervention should continue. In deciding the second question, the court must carry out a balancing exercise between the need in the public interest to protect the public from dishonest solicitors and the inevitably very serious consequences to the solicitor if the intervention continues.”
[20]This approach has been adopted in subsequent cases (see, e.g., Holder v. The Law Society [2003] 1 WLR 1059) although it was modified to some extent in Sheikh v.The Law Society [2006] EWCA Civ 1577. The precise modification is not relevant for present purposes.[21]As I shall indicate shortly, it is possible (as indeed occurred in this case) for an intervention to be initiated without notice to the solicitor. Mr Adams has invited me to certify that the provisions of the 1974 Act that enable this process are incompatible with the European Convention on Human Rights (‘ECHR’). Leaving aside any procedural matters applicable to the making of such a declaration, it seems to me that the argument is simply not available below the level of the Supreme Court given what was said in Holder and what was said by the Court of Appeal in Sheikh v. The Law Society about Holder. I will quote as follows:
“110. It is not in doubt that intervention in a solicitor’s practice, without advance notice, is likely to have the most serious consequences for the solicitor. Parliament has provided the solicitor with a summary process by which he (or she) can bring the matter before the court; but has imposed short time limits within which that process must be commenced. In Holder v Law Society … this Court considered – and rejected – an argument that the procedure for which Parliament had made provision was incompatible with the solicitor’s Convention rights. It rejected that argument (inter alia) on the basis that the court’s power to consider whether a fair balance has been struck between the demands of the general interest of the community and the protection of the individual’s fundamental rights met the requirements of article 1 of the First Protocol. But it is clear that, unless the matter can be determined by the court within a short time of the intervention, the solicitor is likely to be denied an effective remedy. That is because the consequences of intervention – if the intervention continues for more than a short time – are likely to be irreversible. The solicitor’s clients will have to take their affairs elsewhere; the staff will have found other employment; and the practice will be destroyed in any event. 111. There is an obvious tension between the need to have an application to the court determined speedily and the need for the court to give full and fair consideration to the task which it has been set under the 1974 Act and, now, the Human Rights Act 1998 ….”
[22]That addressed the issue from the point of view of Article 1 of the First Protocol and appears also to cover Article 6. Professor Aileen McColgan (who drafted the proposed Amended Particulars of Claim and prepared a Skeleton Argument in support of Mr Adams’ applications, but who no longer acts for him) makes the point in her Skeleton Argument that it does not deal with what she describes as “claims under Article 8 and/or 13 and/or 14 of the Convention.” That would indeed, on a strict analysis, appear to be correct. However, as it seems to me, binding authority holds that the regime of intervention is not something that of itself is non-compliant with the ECHR, but that proposition does not preclude a claim by a solicitor based on Convention rights in an individual case. This would appear also to be the view of Mr Hopper and Mr Treverton-Jones because they say this at paragraph 16.5:
“Solicitors who are the subject of interventions have challenged the exercise of this powerful and terminally damaging regulatory weapon without any requirement for notice, on the grounds that it is in breach of the principles of natural justice and that it is incompatible with the rights protected by the Human Rights Act 1998 (HRA 1998). All such challenges have failed. The natural justice arguments were rejected in Giles v Law Society, and the HRA 1998 arguments failed in Holder v Law Society. In the latter case, the Court of Appeal held that the statutory regime as a whole did not offend HRA 1998, although it remained open to a solicitor to assert that an intervention in a particular case breached the rights protected by the European Convention.”
[23]The effect of that conclusion is that Mr Adams is not prevented in principle from bringing a claim for redress based on the ECHR. One argument raised by the defendants is that he is precluded from doing so by reason of the proceedings before His Honour Judge Weeks QC in March 2006: [2006] EWHC 1053 (Ch), an application for permission to appeal to the Court of Appeal against that decision being refused in a detailed ruling of Hooper LJ: see [2006] EWCA Civ 1857. I will deal with that issue at a later stage.[24]I should return now to deal with the circumstances giving rise to the intervention.

The claims Mr Adams wishes to bring

[25]Before setting out those circumstances, which will involve differing perspectives from the point of view of Mr Adams and the defendants, it is as well to foreshadow the nature of the case Mr Adams wishes to pursue. I will deal with the procedural aspects of that later, but for the present merely indicate in outline what he will seek to establish if permitted to do so. In order to put that into perspective it is worth noting(a) the procedure adopted within the Law Society before an intervention is instituted and(b) the personnel involved. Typically (as indeed occurred in this case), where the Law Society believes that there are reasons for investigating a solicitor’s practice, a team of investigators conduct an examination of the solicitor’s records, speak to others (including clients or former clients) who may have an input into what has been taking place and, of course, speak to the solicitor concerned. The investigators produce a Forensic Investigation Report (‘FIR’) which is then considered by a Caseworker who prepares a Case Note which, together with the FIR, is submitted to an Adjudication Panel. The Adjudication Panel decides whether to resolve in favour of an intervention and whether notice of the proposed intervention should or should not be given to the solicitor.[26]Mr Adams does not seek to criticise the decision of the Adjudication Panel based upon the material with which it was presented. He seeks to criticise the investigation and the way in which the results of that investigation were represented by the Caseworker to the Adjudication Panel.[27]Of the individual defendants whom Mr Adams wishes to pursue, the 7th, 8th, 9th and 10th defendants (Mr Johnston, Mr Heelam, Ms Faulkner and Ms Featherstone) were Investigating Officers of the Law Society’s Casework and Investigation Operations Unit, and the 6th defendant (the late Mrs Giles) was the Caseworker who prepared the Case Note for the Adjudication Panel. She was the Team Leader for the Investigation Casework Team. The 2nd defendant (Ms Crawley) was the Director of the Compliance Division of the SRA and the 3rd defendant (Mr Middleton) was, and remains, the Head of Investigation and Enforcement at the SRA. It is alleged by Mr Adams that each of those latter two defendants would have controlled or supervised the others against whom specific allegations of wrongdoing are made and thus were complicit in that wrongdoing. The case for the defendants is that neither of these two defendants had any direct involvement in the preparation of the FIR or the Case Note. The 4th defendant (Mr Calvert) was Head of the SRA Forensic Investigating Team and he reviewed and approved the FIR, but had no hand in the investigation or the preparation of that report. (I should also say that by way of an appendix to the proposed draft Amended Particulars of Claim Mr Adams is also making allegations of bad faith against a former President of the Law Society, the Chief Executive of the SRA, the Director of Regulation of the SRA, the Senior Partner of Russell Cooke LLP (the Law Society’s agent on the intervention), another solicitor employed by that firm and three other employees of the SRA.) My principal focus, however, is upon the defendants named as such in the proceedings.[28]I will say a word about the fact that these individuals have been named as defendants later (see paragraphs 160-163 below).[29]It appears to be common ground that, as the result of complaints to the Law Society from four unrelated clients or former clients of Mr Adams, an inspection was authorised by the Society. Mr Adams was informed of this by a letter dated 16 March 2004 which provided him also with a list of documents he was required to provide. It is, however, clear that prior to the inspection being announced to him Mr Adams had been in contact with Mr Heelam about some of the complaints made by another former client at the latest 13-15 January 2004 and indeed had been in touch with a Mr Ian Jones of the OSS (the Office for the Supervision of Solicitors) from at least early December 2003. Indeed it appears that contact over this matter went back further. Mr Adams wrote a 21-page letter to Mr Heelam dated 27 January dealing with the complaint of a lady I will identify merely as ‘P’ and Mr Heelam’s approach to investigating the complaint. That letter, as well as a formal letter of complaint against Mr Heelam dated 28 January for his “outrageous and bullying behaviour”, was copied to the then President of the Law Society and others. I will mention Mr Heelam again later (see, e.g. paragraph 90 below), but it is to be noted that the proposed Amended Particulars of Claim allege that Mr Heelam “in particular, demonstrated animus towards [Mr Adams] which underpinned the report subsequently drawn up by [Mr Calvert, Mr Johnston and Mr Heelam] and the Office Note prepared by [Mrs Giles] ….” I should say that Mr Heelam has denied any such attitude in a witness statement.[30]At all events, the inspection team began its work on 23 March and various members of the team identified above visited his practice premises (namely, his home) on various dates in March, May, June and July of that year. The last visit was by Mr Johnston on 2 July. The FIR was put together and signed off by Mr Calvert in a letter to Mr Middleton dated 23 August. Mrs Giles prepared the Case Note which is undated, but the note must have been produced fairly quickly after receipt of the FIR because the Adjudication Panel resolved on 31 August that there should be an intervention and indeed Mr Adams was informed of that resolution on that day.[31]I will have to mention aspects of that process in a little more detail later, but reference to the proposed Amended Particulars of Claim (drafted, as I have said, by Professor McColgan), which Mr Adams seeks to advance as the summary of his claims, will demonstrate the nature of the case he wishes to advance. He seeks to bring a claim in tort for alleged misfeasance in public office and under the Human Rights Act for the alleged infringement of his rights under the ECHR.[32]It is averred in paragraphs 13 and 16 of the proposed Amended Particulars of Claim that the content of the FIR and the Case Note represent “the main subject of [his] claim for misfeasance in public office”. Detailed allegations of the matter said to constitute misfeasance are set out in the draft Amended Particulars of Claim (the allegations covering some 20 or so pages), but the thrust of the case sought to be advanced is set out in paragraphs 17-20 of the pleading which, omitting some words, is repeated below:
“17. The misfeasance claim … is concerned with the concealment by the defendants of numerous facts and documents which would have contradicted their false assertions or implications relating to the Claimant, and the making of numerous false statements about him. The claim is based on the pattern of the defendants’ conduct towards the Claimant. Some of the individual matters of which complaint is made may not appear to evidence misfeasance, taken in isolation. Taken together, however, and with other relevant matters … those matters demonstrate that the individual defendants and, through them, the 1st defendant, have exercised their powers of public officers in a manner specifically intended to injure the Claimant, or with knowledge that they lacked the power to act as they did and knew that their actions would probably injure the Claimant. The actions of the defendants have caused loss to the Claimant … the losses suffered by the Claimant are set out in the accompanying Schedule of Damage. 18. [The FIR] was wholly inaccurate and misleading. The main examples are set out below, but in total the Report and office note contain upwards of 50 misrepresentations or false statements, with similar numbers each of failures to disclose relevant laudable conduct by the Claimant and failures to disclose, or misleadingly quoted, documents; as well as hundreds of failures to disclose relevant information. Taken together, these inaccuracies, misrepresentations and omissions are incapable of explanation other than as conduct specifically intended to injure the Claimant or, at least, as conduct which was unlawful in that it consisted in flagrant misrepresentations as to the Claimant’s conduct and character, which misrepresentations must have been made at least with subjective recklessness as to their untruth. 19. The malicious nature of the misrepresentations made, and the impression of the Claimant’s character provided thereby, is underlined by the failure … to include in [the FIR] any evidence of the Claimant’s good character and praiseworthy conduct, which character and conduct was evidenced to the defendants from the evidence before them, including information specifically drawn to their attention by the Claimant and which he was assured by [Mr Johnston] would be put before the relevant decision makers. The evidence included many examples of the Claimant disadvantaging himself in terms of charging, including in some cases exceptionally long periods of credit to the benefit of his clients; examples of the Claimant’s active and successful efforts to combat fraud and other criminal behaviour; and evidence of the high esteem within which the Claimant was held by members of the judiciary and other senior members of the legal profession. 20. The [FIR] and the accompanying office note were designed to represent the Claimant as dishonest, unethical and grasping whereas, to the knowledge of those involved in drawing up and signing off the [FIR] and office note, this picture of the Claimant was false.”
[33]Paragraph 19 of the draft Amended Particulars of Claim refers to a note prepared by Mr Adams during the course of the investigation which was given to Mr Johnston who, according to Mr Adams, said that it (together with a CV Mr Adams had prepared) would be shown to the “people who made the decisions”. The note set out commendatory remarks made by members of the judiciary about his conduct of cases before them, his role in securing the successful prosecution of several fraudsters, the assistance he rendered to a well-known member of the judiciary who was mugged near to his home and the fact that distinguished members of the profession and the judiciary had supported applications he had made in the past for minor judicial roles.[34]It is not in dispute that this note was indeed given to Mr Johnston. Mr Adams says that it occurred on 24 June 2004. I am unaware of any concession having been made that a commitment to it being drawn to the attention of the “decision-makers” was given, but assuming that it was given and was not honoured, the question is whether it would, either as an individual allegation or as part of a series of allegations, amount to misfeasance in public office. I will return to this when dealing with my overall assessment of Mr Adams’ proposed case.[35]The schedule of damage referred to particularises a claim in a sum in excess of £5 million arising from the destruction of his practice and his livelihood.[36]Although in some of his statements, and in the oral submissions he made to me, Mr Adams suggested that some of the matters upon which he seeks to rely in support of his claim constitute “untargeted malice” (and indeed the pleading is also to be so interpreted in places), the essence of the case as pleaded and advanced (see paragraph 20 of the draft Amended Particulars of Claim) is that this was “targeted malice” – in other words, “conduct specifically intended to injure” the victim: per Lord Steyn in Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1, 191. As Maurice Kay LJ said in Hussain v Chief Constable of West Mercia [2008] EWCA Civ 1025, at paragraph 20 – “Misfeasance in public office is an intentional tort of considerable gravity. It is a tort of obloquy….”[37]In either form, but most particularly in its targeted form, the evidential threshold for establishing the tort is high.[38]The observation about the high threshold that needs to be crossed for a case of misfeasance in public office to be established relates to any case in which it is alleged. It must be observed that Mr Adams has set himself a particularly steep mountain to climb given the essence of his case, namely, that the four investigating officers (in effect aided and abetted by their supervisors) pursued either separate courses, or a collective course, of deliberately targeting him with unjustified, unfair and unsubstantiated criticisms of the way he conducted his practice, superimposed upon which was the deliberate targeting of him by Mrs Giles and the production of a wholly slanted and biased Case Note designed to persuade the Adjudication Panel to intervene and to do so without notice to him. Having said all that, it is not, of course, impossible that a team of investigators (whether of the SRA or any other investigatory body) could set out with the deliberate intention of causing some injury to someone by “framing” him, but in the realms of what is or is not possible or likely, the evidence in support of any such case would need to be compelling.

The approach to summary judgment

[39]As I have said, merely because the threshold for establishing the tort is high and that the evidence in support would need to be compelling does not, of course, mean that in a proper case the threshold may not be crossed. On the approach needed to determine whether to accede to the submissions of the defendants that judgment should be entered in their favour under CPR 24.2, the question is whether there is a real prospect of success. In the context of this case the question seems to me to be whether, in the words of Lord Hope of Craighead in Three Rivers at paragraph 95, “the factual basis for the claim is fanciful because it is entirely without substance”. The matter was put thus by Potter LJ in ED and F Man Liquid Products Ltd v Patel and another [2003] EWCA Civ 472:
“It is certainly the case that under both [CPR 13.3(1) and CPR 24.2], where there are significant differences between the parties so far as factual issues are concerned, the court is in no position to conduct a mini-trial: see per Lord Woolf MR in Swain v Hillman [2001] 1 All ER 91 at 95 in relation to CPR 24. However, that does not mean that the court has to accept without analysis everything said by a party in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporary documents. If so, issues which are dependent upon those factual assertions may be susceptible of disposal at an early stage so as to save the cost and delay of trying an issue the outcome of which is inevitable: see … Three Rivers DC v Bank of England (No.3) … per Lord Hope of Craighead at paragraph [95].”
[40]Logically, in the scheme of the issues that arise for consideration in these cross-applications, this would be the last issue in line after determining the procedural issues raised in Mr Adams’ application and, if decided in his favour, after rejecting some of the other points taken by Mr McLelland. However, Mr Adams was anxious that I should consider the merits of the case and, so far as is permissible on such matters as are before me, I am content to approach it on that basis. He took me through a number of the main bones of contention that he has with the way the investigation was carried out, how the FIR was composed and how the Case Note was constructed. He accepted, as I understood him, that I could not conduct a mini-trial as such, but he was anxious to demonstrate that he had a strong case on the issues that he seeks to advance. There is, of course, some logic to considering matters in this way because, if I was persuaded of the strength of his case, it might influence my approach to any discretion that exists in connection with the procedural applications that I must also consider.[41]In order to consider the merits of the case so far as is permissible it will be necessary, in the first instance, to record what was said in the FIR and the Case Note about which Mr Adams makes strong complaint.

The FIR

[42]I have indicated above (paragraphs 27-30) the time-scale over which the investigation took place and the personnel involved.[43]The FIR ran to some 36 pages. It will not be possible to convey the effect of every aspect of the report in this judgment, but I will endeavour to summarise some of the principal matters.[44]It recorded information given by Mr Adams to the Investigating Team about his professional history and the fact that in September 2000 he entered into an Individual Voluntary Arrangement (‘IVA’) for a period of 5 years arising from an indebtedness of just over £380,000. (A condition of his maintaining a practising certificate following the IVA was that he should file half-yearly accountant’s reports). The report also detailed the accounts held in the firm’s name which, of course, in effect were a client account and an office account.[45]The report recorded a number of undisputed breaches of the Solicitor’s Accounts Rules (‘SAR’). They, and the way in which they were reported, can be summarised as follows: i) £95,000 The error relating to this sum was rectified before the investigation took place. However, it is referred to in a qualified accountant’s report for the 6-month period ending on 31 January 2004 and merely because it was rectified before the investigation did not, of course, render it irrelevant for the purposes of the investigation. The FIR noted that Mr Adams had, at the request of a company for which he was acting in a conveyancing transaction, made payments totalling £95,000 to four creditors of the company out of the proceeds of sale of a property. Erroneously, the four cheques had been drawn on the firm’s office account. A few days after this occurred, Mr Adams instructed the bank by a faxed letter to transfer £95,000 from the firm’s client account to the office account which the bank indeed did. However, 16 days later the bank transferred another £95,000 from the client account to the office account, apparently in response to the original of the faxed letter that Mr Adams had sent on to the bank. This further transfer occurred on or about 29 October 2003. Nothing was in fact done to rectify this situation until Mr Adams wrote to the bank on 13 January 2004 advising them of the situation. What emerged during the investigation was that the firm’s book-keeper had noted the position on 19 December and had sent an urgent fax to Mr Adams alerting him to the problem, namely, that there was “a shortfall on [the] client’s account of £95,000” and asking him to transfer the money “back as a matter of urgency”. The report noted that whilst his obligation under the Rules was to remedy any breach “promptly on discovery”, it took Mr Adams three weeks to remedy the shortfall. The report noted that the letter sent by Mr Adams to the bank on 13 January, alerting the bank to the issue, commenced with the words “it has now come to my attention that the transfer was erroneously made by the bank twice…” and concluded with the words “… if I had had proper notice of the true position … I could have taken action some weeks or months ago to transfer or otherwise bring forward the payment of fees”. However, the report also suggested that it was “inconceivable that Mr Adams was unaware that there was a problem with his office account prior to 19 December” because between 29 October 2003 and 15 January 2004 (when the £95,000 was paid back) a total of just over £26,000 was withdrawn from the office account (by means of cash withdrawals, cheques signed by Mr Adams and a good number of direct debits and standing orders) when(a) nothing had been paid in to that account in the meantime and(b) the overdraft facility on that account was £10,000 and the account was overdrawn to the extent of £3,900 immediately before the second transfer of £95,000. The investigation report also noted that the correcting transfer of £95,000 that took place on 15 January 2004 was dated 31 October 2003 in the firm’s ledger account, thus giving the appearance that the shortage existed for only 2 days whereas in reality it was in existence for 78 days. ii) £4,500 As I have indicated, the above matter concerning the £95,000 was finally rectified on 15 January 2004 when the bank effected the necessary re-transfer of the £95,000 to the client account and at the same time granted Mr Adams a temporary increase of his overdraft facility on his office account from £10,000 to £35,000 until 13 February 2004 pending the receipt of further funds. The report notes that on 5 February, Mr Adams paid £4,500 from the client account to an agency for the hire of temporary secretarial staff, a sum that plainly ought to have been paid from the office account. The report reveals that had he paid the £4,500 from his office account on 5 February he would have exceeded his overdraft limit from 13 February onwards. The correcting transfer back from the office account to the client account of the £4,500 did not take place until 22 March (the day before the Investigation Team arrived), but the entries in the records dealing with it were dated 5 February. iii) £13,059.15 The FIR notes the need for a solicitor who “properly requires payment of … fees from money held … in a client account must first give or send a bill of costs … to the client ….” On 13 February (when the overdraft facility on the office account reduced to £10,000) Mr Adams transferred a total of £13,059.15 from the client account to the office account in respect of fees that he said were owing by four clients, but before the bills were sent to those clients. The precise dates upon which the bills were sent to the clients is a little unclear from the report, but in some cases they were not sent for several weeks.[46]I will pause in the summary of the FIR simply to note that these three areas flagged up in the investigation do suggest clear breaches of the SAR and the unauthorised use of client’s money for “office” (and, indirectly, “personal”) purposes. The report acknowledges that Mr Adams told the investigators that there had been breaches of the rules and that he mentioned specifically those associated with the £95,000. I will refer to how the Case Note dealt with these matters below.[47]All those matters arose from events associated with Mr Adams’s practice in the period roughly between October 2003 until March 2004. Other matters that form the subject of the report also arose in that broad period, but some went further back in time. Again, I will endeavour to summarise the principal matters referred to.[48]In relation to a number of the other matters referred to in the report, comment is made that there was no “client care” letter on the file (as required by the Practice Rules) setting out relevant information concerning costs. In another case it was suggested that Mr Adams had billed a client twice for the same period without having done any extra work.[49]In another case, involving a client called ‘SH’, the report indicates that Mr Adams had transferred to his office account two separate sums of £11,750 from the net proceeds of sale of a property, which had been placed in his client account, those transfers taking place in January and March 2002. SH had denied receiving bills for those sums and in relation to the first it was suggested that it related in part to a time before Mr Adams was instructed. Proceedings were instituted against Mr Adams by new solicitors instructed by SH and those came before Central London County Court in June and July 2004. The report indicates that the court ordered Mr Adams to pay £11,750 into court within 7 days in respect of some of the bills and within the same period to transfer another sum of £11,750 from his office account into an interest bearing client deposit account and to deliver up to SH’s new solicitors all files and documents relating to the work carried out by SH. On 10 June 2004 the SRA had given notice to Mr Adams under section 44B of the Solicitor’s Act requiring production of SH’s files and accounting records by 29 June. The report indicates that this was not done.[50]A number of other matters were raised in the report, but I will confine myself to mentioning finally the finding of the investigators that Mr Adams still retained significant client balances even though the substantive matters to which they were related appeared to have been concluded for some while. In relation to six particular matters detailed in the report a total of something over £116,000 was retained in this way, some of the matters going back to 1999. In relation to certain of those matters, the report indicates that Mr Adams had failed to respond to relevant section 44B notices seeking the files and accounting records for them.[51]So much, in summary, for the FIR. As I have indicated on several occasions, a fair number of other matters were also raised, some of which arguably reflected on the honesty with which his practice was being conducted. There is no doubt that there was correspondence and communication between Mr Adams and the investigating team (and others who supervised them) during the course of the investigation. I will deal with that as necessary when I deal with Mr Adams’ complaints about the whole process.[52]I think I should record this at this stage, however: I have read through the whole FIR, indeed some parts of it on more than one occasion, and I have done so in the knowledge that Mr Adams is very critical of it. I have to say that there is nothing in it which suggests to me that it represents the work of those determined to paint the blackest picture of Mr Adams. It appears at face value to be factual and balanced. It does not read particularly well from his point of view, but if the facts set out were substantially accurate then it could not read well. Mr Adams’ position is that, whatever the appearances might be, the investigators (and others) “had distorted or suppressed the truth, and even lied, on not just one but several occasions” in the course of the production of the FIR and, in due course, the Case Note. (Those words are quoted from paragraph 15 of his witness statement of 14 April 2011).[53]I will return to the gist of his complaints about what was done (or not done) after I have recorded briefly the terms of the Case Note.

The Case Note prepared by Mrs Giles

[54]The Case Note consists of about 4½ pages in which Mrs Giles summarised the various matters raised in the FIR. She identified (accurately) the cash shortages on the client account that I have summarised above, various other breaches of the SAR (not all of which I have summarised above) and certain other matters, principally concerning billing issues. She referred to the IVA and the qualified accountant’s report which dealt with the £95,000 issue and again identified in summary form the issues raised in the FIR. She identified, for the benefit of the Adjudication Panel, where any of those matters represented breaches of the rules or guidance for the profession.[55]There followed 4 pages in which the Adjudication Panel was reminded of the circumstances in which an intervention may be ordered with some detailed (and, so far as I can judge, entirely accurate) reminders of what constitutes “dishonesty” in the context of the way the Law Society approaches it for the purposes of a solicitor’s practice. Given Mr Adams’ complaints, I should quote what Mrs Giles said to the Adjudication Panel about the three matters identified in paragraph 45 above. What her note said in that context is set out in paragraphs 6.1, 6.2 and 6.3 of this part of her Note, which paragraphs, and those which follow dealing with other matters she raises, are prefaced by the following words:
“In considering the issue of dishonesty in respect of Mr Adams the Panel is asked to consider the following” and then the various sub-paragraphs appear. Paragraphs 6.1 – 6.3 read as follows: “6.1 That Mr Adams used client money to pay the fees/salaries of temporary secretarial staff at a time when he would not have been able to make the necessary payments from office account because he would have exceeded the firm’s overdraft facility in doing so. 6.2 That Mr Adams transferred monies purportedly in respect of costs without delivering a bill or other written notification of costs incurred to the clients concerned. The Panel will note that it appears that the resultant shortage of £13,059.15 has not been rectified because there is no indication that bills have now been delivered. 6.3 As indicated previously in this Report, a cash shortage of £95,000.00 arose on 29 October 2003 following a duplicated bank transfer from the firm’s client to the firm’s office account. Mr Adams was aware of the shortage at the latest on 19 December 2003 when he was contacted by the firm’s bookkeeper. On 13 January 2004 Mr Adams wrote to his bank indicating that, having been unaware of the error, he had continued to draw on his office account with the result that he was unable at that time to rectify the shortage. The Panel will note that immediately prior to the second erroneous transfer, the practice’s overdraft facility was only £10,000.00 and office account was £3,905.17 overdrawn (AP10). In the circumstances, the Panel may consider that in making withdrawals and paying direct debits and standing orders totalling £26,172.63, and in excess of his overdraft limit, when he must have been aware that he had not made any payments/transfers into office account, Mr Adams acted with conscious impropriety and/or closed his eyes and ears lest he learn something he would rather not know and then proceeded regardless. The Panel may wish to note that the caseworker understands that a total of £6,257.81 of the withdrawals from office account were made after 19 December 2003.”
[56]She then went on to deal briefly with the two sums of £11,750 (see paragraph 49 above) and then drew attention to two previous findings of the Solicitors Disciplinary Tribunal which (unsurprisingly, it may be thought) held that client’s funds are “sacrosanct” and that a solicitor’s stewardship of those funds “had to be maintained at the highest level no matter what the personal pressures upon the solicitor” and that they had to be “treated with scrupulous care”.[57]She then went on in paragraphs 6.6 – 6.8 in the following manner:
“6.6 The Panel will note that Mr Adams has retained in client bank account significant sums in relation to matters in respect of which he has carried out no substantive work for some time …. The Panel may wish to ask the question – why has Mr Adams failed to account to clients for those sums? Bearing in mind the instances detailed in the FI Report of Mr Adams using client money for office and personal expenses, the Panel may wish to consider whether this money is at risk. In this connection, the Panel might also wish to bear in mind the financial pressures currently being faced by Mr Adams in light of his Individual Voluntary Arrangement … and the monies required to be paid into court as a result of the summary judgment referred to at paragraph 93 of the Report …. 6.7 The Panel will also wish to consider whether Mr Adams acted with ‘conscious impropriety’ in submitting to the court and another firm of solicitors that he wished not to attend a hearing in order to save the public purse at a time when he was aware that the Legal Aid Board had notified him that they were treating the application for public funding as abandoned. 6.8 The Panel will note the references in the FI Report to Mr Adams’ non-compliance with certain of the Notices issued to him under section 44B of the Solicitors’ Act 1974 (as amended). The Panel will note that the files which have not been produced include that of [SH] (although this has now been dealt with by order of the court) and a number of those on which Mr Adams retains substantial balances in client account. The Panel may wish to consider whether Mr Adams has refused to comply because he is concerned that those files may disclose further evidence of impropriety on his part. The Panel may wish to consider whether Mr Adams is ‘closing his eyes and ears’ to his obligations to the Society as a result.”
[58]She then drew attention to the issues that the Panel had to consider in deciding whether to order an intervention in Mr Adams’ practice and whether the “evidential test” and the “public interest test” were met such that reference of his conduct to the Solicitors’ Disciplinary Tribunal was appropriate.[59]It should also be noted that this part of her note to the Adjudication Panel began with the following two paragraphs:
“Preliminary Issue 1. The Panel is advised that neither the FI Report nor this office Report have been disclosed to Mr Adams for his explanation in advance of the matter being considered by the Panel. The reasons for this include the scale of the apparent wrongdoing and that it was considered by the Society that clients’ funds and documents may be at risk if notification of the matter being adjudicated was provided. 2. If the Panel considers that Mr Adams should be given an opportunity to comment on the issues detailed in the FI Report and this office Report and provide an explanation of his conduct then the Panel is, of course, free to so direct and stand over consideration of the matter.”
[60]At the end of her note was a document entitled “Draft recommendations” which contained a series of draft resolutions for the Adjudication Panel to consider.[61]In the event the Adjudication Panel (constituted by the Chairman of the Panel operating under delegated powers) did indeed adopt the draft recommendations. Paragraph 1 indicated that “grounds for intervention existed … namely, that there was reason to suspect dishonesty on the part of Mr … Adams in connection with his practice as a solicitor”. In paragraph 14 the Panel indicated that it was satisfied that Mr Adams had failed to comply with the Solicitors’ Practice Rules 1990 in certain respects and with the Solicitors’ Accounts Rules in certain respects and that “accordingly the powers conferred by Part II of the said Schedule 1 are exercisable in relation to his practice as a solicitor ….”[62]Again, notwithstanding the criticisms that Mr Adams makes of the Case Note, standing back and looking at it in the context of the FIR, it does not, in my judgment, give the impression of having been drawn up in any overtly vindictive way towards Mr Adams. To the extent that it was a matter for Mrs Giles herself, it would certainly seem that there was a “steer” to the Adjudication Panel towards a conclusion that there was “reason to suspect dishonesty”, but(a) it has to be said (as I will amplify later) that the FIR gave a firm basis to her for giving that “steer” and(b) ultimately it was a matter for the Adjudication Panel to decide whether what it was presented with gave such a basis.[63]I have endeavoured to summarise the gist of the FIR and the Case Note as they were presented. As I have said, I have not been exhaustive. It will be necessary to do the same with Mr Adams’ complaints about the process that led to the production of the FIR and the Case Note. Given that his response to the matters raised in those two documents runs to, literally, hundreds of pages in several very lengthy witness statements and letters, I am sure that any attempt I make to distil the essence of what he is saying will not be satisfactory to him. However, as I have already emphasised, this is not a mini-trial and I must do my best to understand and appreciate the essential message he seeks to convey without descending into the kind of fact-finding mission that is reserved for a full trial. I must approach my task in the light of the questions I need to address in the manner set out in the authorities to which I referred in paragraph 39 above.[64]In order to illustrate Mr Adams’ approach to the applications before me, I think it might be helpful to record what he said in a few paragraphs of his 5th witness statement dated 16 March this year. He expresses the wish (in paragraph 9) that the court should focus on what he perceives to be “the very strong merits of [his] claims”. Having said that he continues thus in paragraphs 11-14:
“11. I respectfully submit that what should inform and underpin the Court’s decision in this case, both at the forthcoming hearing of my and the Defendant’s applications, and throughout the proceedings, up to and including trial, is the simple justice of the matter. From a factual viewpoint it may be hard for someone coming to this case afresh, and with little time to assimilate and weigh a large amount of factual information, to decide where the truth lies. 12. This is due to the factual density of the allegations originally made against me in the documents inducing the intervention, principally the FIU Report (the ‘Report’) and Case Note. These may seem fairly simple and the conclusions drawn or implied equally straightforward. However, factually, each of them was often the tip of the iceberg in the form of e.g. a very thick file or far more complex background. With a very large number of crucial facts and documents suppressed by the Defendants. 13. The number of my allegations in the draft Particulars of Claim is a direct consequence of the sheer number of wrongful acts and omissions by the Defendants …. 14. My counter allegations formalised in my present Misfeasance Claim, have been made repeatedly over the years, initially within a few minutes of my being informed over the telephone by Mr Bain of the First Defendant, that I had been intervened in. Belatedly, the Defendants have purported to address my allegations in the schedule of responses comprising the Schedule to Mr Gibson’s Statement. Superficially, to someone who knows little or nothing of the facts and the reality, that Schedule may appear to deal with my allegations and show they are misconceived. My responses are set out in the Schedule to my 6th Statement and also with respect to two of the accounts breaches in my 7th Statement. I believe it is clear from those responses the Schedule does not answer my allegations, or at least most of them nor many of the most important.”
[65]With respect to Mr Adams, I think it may be a matter for debate as to whether the “factual density” that has arisen in this case arises from the allegations originally made against him or his response to them. Undoubtedly, Master Eyre took the view (see paragraph 134 below) that his originally drafted Particulars of Claim needed some extensive pruning which is what Professor McColgan attempted to achieve. She did so, but even that attempt resulted in 37 pages of allegations, leaving aside the Damages Schedule.[66]For anyone who is reading this judgment who requires an insight into what I was presented with should understand that the 5th, 6th and 7th witness statements (none of which appear to have been signed), to which reference has been made in the preceding paragraphs, were brought by someone acting on Mr Adams’ behalf to the security gates of the Royal Courts of Justice at about 5 pm on the day before the hearing. The 5th witness statement contains 503 paragraphs and runs to 144 pages. That witness statement does not deal with what Mr Adams describes as the Law Society’s response to his allegations set out in the Schedule to the witness statement of Mr Colin Gibson, the partner with Field Fisher Waterhouse dealing with these proceedings. Mr Gibson’s witness statement was lodged in support of the Defendant’s Application Notice of 1 September 2011 (see paragraph 4 above) and was itself dated 1 September 2011. Mr Adams’ response to that Schedule appears in his 6th and 7th witness statements also dated 16 March. The 6th witness statement contains 324 paragraphs and runs to 144 pages. Appended to that witness statement is a closely typed 16 page Schedule dealing with further matters in Mr Gibson’s Schedule. The 7th witness statement runs to 113 paragraphs over some 64 pages. It appears that this is the kind of thing he is prone to do. His Honour Judge Weeks QC (see paragraphs 146-147 below) said this in his judgment:
“At the beginning of February, the Law Society took it upon itself to put in further witness statements which, in effect, replied to the draft second witness statement of Mr Adams. Mr Adams, true to form, in the days shortly before the hearing came on, produced a fourth draft witness statement, which in its first incarnation ran to 226 pages and was extended to over 300 pages, and a fifth witness statement which said that his fourth witness statement was more or less correct.”
[67]The seeking by Mr Adams of an adjournment is also not an unknown phenomenon in the history of this matter. The cross-applications before me had been due for consideration by the court in December last year, but given the difficulties that Mr Adams said that he faced with his then chosen Leading Counsel, on 29 November Eady J acceded to an application for an adjournment. That is how the matter came before me. Whilst I do not under-estimate the scale of the task that Mr Adams set himself in responding in quite extraordinary detail to the case against him, it is surprising that he was unable to submit all this material to the court and to the opposition only on the evening of the day before the hearing.[68]Not surprisingly, Mr McLelland objected to my receiving these witness statements. I took the pragmatic course, in fairness to Mr Adams, of saying that I would receive the material de bene esse, but would not pay any attention to anything that caused the Law Society obvious prejudice through its late deployment. Given the previous extensive delays in this case, I was not prepared to contemplate any further adjournment. As I told Mr Adams during the second day of the hearing, I had done my best to look through the material he had presented, but it was impossible to have digested it all and I do not claim even now to have digested it all. Much of it I felt constituted argument rather than evidence and some of it was undoubtedly merely repetitive of things said or asserted in other material.[69]At all events, that describes the material available. As I have said, for present purposes, I need simply to distil as best as I can what it is that Mr Adams says that demonstrates his strong claim of misfeasance in public office. Inevitably, I shall need to look principally at the way the matters are pleaded in the draft proposed Amended Particulars of Claim.[70]I should, perhaps, say that Mr Adams’ approach (as reflected in his 5th witness statement and in his oral submissions to me) was to endeavour to demonstrate the strength of his misfeasance claim by focusing on what he described as “just a very few of the more glaring examples of wrongdoing in [his] draft Particulars” which, he said, would “show multiple instances of wrongdoing” on the part of the Defendants. The examples he chose are identified at paragraph 21 of his 5th witness statement. None of the examples he chose had any bearing on the three matters mentioned in paragraph 45 above, namely, the use made by him of clients’ money when the clients’ money had been transferred to the office account. He does deal with this in his 7th witness statement and, at my encouragement on more than one occasion during his oral submissions, he did deal with the £95,000 issue orally. I would merely observe that anyone coming to this case afresh, as I did, would immediately want to know what his case was about those matters as reported by the Investigating Team. They give rise to allegations that, to any objective observer, stand out as potentially very serious.[71]Because they do stand out in the way I have indicated, I propose to set out in summary form Mr Adams’ response to them first, before turning to other issues that he has raised.

The £95,000 issue

[72]The backdrop to this issue (as indeed it is to one or two other issues) is Mr Adams’ case that since May 2003 he had been without permanent secretarial and administrative support and that since that time his bookkeeper was “off site”. He had to fax bookkeeping information to her and this was regularly delayed because of pressures of work and pressures to which he was being exposed from what he characterises as a “mishandled” investigation by the Law Society into a complaint made by a client. He claims to have spent between 40-80 hours on representations to the Law Society between August and November 2003 on that complaint. It is said in the proposed Amended Particulars of Claim that by August/September 2003 “his bookkeeping arrangements had all but broken down and his efforts to retain permanent secretarial/administrative support had still not succeeded”. Indeed in another statement he blames the Law Society for his predicament in that respect at that time.[73]Although Mr Adams’ 6th Witness Statement seems to suggest that the FIR made criticism of him for the initial error in paying the £95,000 in cheques out of the office account and then transferring the money from the client account to the office account, no such suggestion appears in the Report. Indeed the proposed Amended Particulars of Claim do not contain any allegation that that was the suggestion made in the Report. The criticism in the proposed Amended Particulars of Claim is(i) that the investigators never put to him their view that he must have been aware of the bank’s mistake in making the second transfer of £95,000 earlier than when he was told by the bookkeeper on 19 December and yet carried on using the office account when it would otherwise have been overdrawn and(ii) that they did not give him the opportunity to put to and explain to them that there were entirely innocent reasons for the delay between 19 December and being in a position to engage with the bank about the issue on 13 January. It is also alleged that, had they confronted him with the suggestion that an attempt had in effect been made to cover up the error by backdating the record of the reverse payment in the ledger account they would have discovered (and thus reported) that this was his bookkeeper’s error and not the result of an instruction by him.[74]As to the reasons which he would have put to the investigators had they asked him about the delay in contacting the bank between 19 December 2003 and 13 January 2004, I should record what is said in the proposed Amended Particulars of Claim:
“(c) The delay in the transfer of funds back to the client account until 13 January 2004 resulted from: (i) the fact that there were only two banking days between 19 December 2003 and Christmas, (ii) the Claimant’s need to double-check the extraordinary error, which he did over the weekend on 20-21 December; (iii) the time and disruption unexpectedly caused to the Claimant’s work and practice by the fact that the Claimant’s home/workplace was in disarray as a result of building works which had become delayed and complicated and which left the Claimant at times without running water, toilet facilities, central heating, or cooking facilities and forced the Claimant to devote urgently much of his time before Christmas to ensure these difficulties did not persist over the Christmas break thus ruining his family’s Christmas as well as continue to disrupt the running of his firm; (iv) the Claimant’s failure, despite attempts between Christmas and New Year, to contact the relevant bank manager who was on holiday for part or all of this period; (v) the Claimant’s illness starting during the Christmas break, which persisted until the end of the first week in January (c. 9 January 2004) All with the effect that the Claimant did not have the opportunity to complete instructions to the bank to transfer the sums, which required personal contact between the Claimant and the bank so that he could make arrangements for the temporary provision to him of a larger than normal overdraft facility, until Tuesday 13 January 2004.”
All with the effect that the Claimant did not have the opportunity to complete instructions to the bank to transfer the sums, which required personal contact between the Claimant and the bank so that he could make arrangements for the temporary provision to him of a larger than normal overdraft facility, until Tuesday 13 January 2004.”[75]I have to be blunt. I do not consider for one moment that an explanation along these lines would have been reassuring to the investigators or, if advanced to the Adjudication Panel, would have influenced the decision in a beneficial way from Mr Adams’ point of view. Mr Adams must know, as all solicitors do without any need to refer to previous decisions of the Solicitors Disciplinary Tribunal, that the clients’ funds are indeed “sacrosanct” and that the unauthorised transfer of money from the client account to the office account can lead to very serious consequences. Whilst, one supposes, that occasional unintentional lapses do occur even in the best-run practices which, once identified, are rectified rapidly and without anyone entertaining any particular suspicion about the circumstances, the figure of £95,000 for a one-man practice does seem to me to be something that should strike horror in the mind of the solicitor once discovered. It certainly seems to have struck horror in the mind of Mr Adams’ bookkeeper when she discovered it. Her fax was sent to him at 13.25 and, according to the FIR (the accuracy of which in this respect I do not think that Mr Adams challenges), which drew his attention to what she described as a “shortfall” of £95,000 on the clients’ account and in respect of which she said this:
“…The clients’ account … has a shortfall and please transfer back as a matter of urgency…. please confirm that this is being dealt with…. it is unfortunate that this has only come to light today but I cannot pick errors up until I am sent the accounts data to process.”
[76]She marked a copy of the clients’ ledger account with the words “Urgent! Clients’ debit!”[77]Mr Adams replied one and a quarter hours later by faxing back to her the fax she had sent to him with the following words in handwriting on:
“bank whose fault it is to make available temporarily a sufficiently large o/draft facility to clear client debit completely….I can transfer the whole of the credit on office to client plus part of office a/c overdraft facility. However, do not have sufficient facility or available costs to transfer whole amount….ps. do have sufficient costs but no time to calculate & do bills.”
[78]Had Mr Adams faced a Solicitor’s Disciplinary Tribunal hearing (which he did not: see paragraph 130), the first question any advocate representing the Law Society would have asked was why his handwritten comment was not to this effect:
“This is extraordinary. I had no idea about this. Can you see how it has arisen? I’ll get on to it immediately.”
It might have been suggested to him that the words he used to his bookkeeper indicated that he did already know about the situation, that it had come about because the bank had not been prepared to give him a sufficiently large temporary overdraft facility and that he was taking advantage of the mistake that they had made whilst he tried to put things in order by billing clients appropriately, something he would get around to doing when he could.[79]At all events, his case at any such hearing would have been that he needed the weekend to “double check the extraordinary error”. Assuming in his favour that to have been the case, the next question the advocate at the SDT hearing would probably have asked him was whether he did indeed confirm it. The answer to that question would presumably have been “yes”.[80]There were then two working days before Christmas Eve, namely, 22 and 23 December. It would have been a legitimate question to ask why Mr Adams did not make any effort to contact the bank manager, by telephone, e-mail or letter (faxed or otherwise), on either of those days. Even if he had tried to contact the bank manager and failed, it is difficult to see why he did not write a letter confirming that he had tried, but failed, and telling him that he (Mr Adams) had very recently discovered an “extraordinary” discrepancy or error on his client account and that it needed rectifying immediately otherwise he could be in trouble with the Law Society. But no such letter was written, Mr Adams presumably citing as a reason the domestic difficulties that the pleading refers to in sub-paragraph (iii). I am afraid I do not think that anyone would regard those matters (inconvenient though they may have been) as sufficient justification for not sending a short letter to the bank informing them of the position if only to cover Mr Adams from any criticism that he had not immediately done something to sort out the position as soon as it was drawn to his attention.[81]It was not until 13 January that he did contact the bank manager. He says that he had made attempts to contact “the relevant bank manager” between Christmas and the New Year (and it does not appear that the illness referred to in sub-paragraph (v) prevented him from doing so or indeed writing on 2 January to another client about fees: see paragraph 55 of the FIR), but that the bank manager was “on holiday for part or all of this period”. Again, this does not explain why a letter or e-mail was not sent to the bank during that time indicating Mr Adams’ real concern about an error made by the bank, nor does it explain why, when he did write to the bank manager on 13 January, he did not refer to all the attempts he had made to contact him over the previous two weeks or so. He complains that too much significance is attached by Mr Gibson in his witness statement to the use of the word “now” in his letter to the bank manager of 13 January. This is not a point made expressly by the investigators or by Mrs Giles, but it would have been a legitimate question to have asked at any SDT hearing of someone like Mr Adams who chooses his words with care.[82]It is only necessary to put forward the matters I have put forward to appreciate that, had Mr Adams’ account been fed to the investigators, as Mr Adams said would have occurred had he been given the opportunity, it was more likely to have aggravated the position by drawing attention to the weaknesses of his story rather than strengthening it.[83]The clearest possible inference is that he was using the bank’s error (which, of course, the bank felt was at least in part attributable to him having sent the original of the fax by post to the bank without referring to the fact that the original had been faxed) to tide him over the Christmas period and that many sums (including cash withdrawals) were made over that period when he knew that the funds he was using came from the client account. It is, of course, quite correct to say that, in due course, everything was paid back and, whatever motive Mr Adams had, it was not one with an intention permanently to deprive the clients of their money. But, whilst that feature is necessary to establish theft, theft is not the only form of dishonesty that arises in this context: cf. Jackson v The Law Society [2006] EWHC 138 (Admin). There is, of course, the additional feature here of the backdating of the rectification in the ledger account. Mr Adams says that it was the bookkeeper’s error. Is there a record of him drawing the attention of the bookkeeper to such error and saying that it should not have been dealt with in that way? So far as I am aware, the answer is “no”.[84]There are, of course, other matters that I must deal with, but any rational analysis of the £95,000 issue would, in my view, raise very significant questions about Mr Adams’ approach to his practice. My view is, of course, irrelevant: the question is the view formed either by the investigators, or the Caseworker or, in due course, by the Adjudication Panel. However, I am inclined to think that all would speak with the same voice: this was not honest practice. At the very least it gave reason to suspect dishonesty.[85]So far as the Investigating Team was concerned, this issue was not the issue that brought them into the investigation. The client whose £95,000 was involved did not, so far as I am aware, complain – that was because neither it nor the payees of the constituent sums totalling £95,000 lost out or indeed would have known what had happened. However, the fact is that the client account was depleted by the sum of £95,000 from 29 October 2003 to 15 January 2004. It may have been the bank’s money in reality, but that does not make the position better: using money to which he was not entitled for the purposes for which he used it would undoubtedly have raised a question about the honesty of the way he was conducting the financial side of his practice.[86]Mr Adams complains that Mrs Giles’ Case Note referred to the IVA without referring to the fact (as he suggests it to have been) that he complied with all its terms. However, it cannot be ignored that the accountant’s report on his practice (necessary because of the IVA: see paragraph 44 above) did draw attention to this particular problem.

The £4,500 issue

[87]This matter was followed closely by the issue of the £4,500 paid from office account for the temporary staff (see paragraph 45(ii) above). Mr Adams complains that the part of the FIR dealing with this (which I endeavoured to summarise in paragraph 45(ii) above) failed to record his explanation that the payment had been made as the result of “a simple error”. The way he seeks to advance this argument in the proposed Amended Particulars of Claim is as follows:
“In the absence of secretarial support [Mr Adams] had faxed to the bank a request for urgent payment of monies (by CHAPS) owed to an employment agency. Because of his rudimentary typing skills and the urgency of the matter [Mr Adams] had begun to amend a document using a template for CHAPS payments (which was generally used for conveyancing payments from the client account), intending to insert the office bank account details, but overlooked doing this by reason of an oversight during a period of great work pressure and no administrative support.”
[88]The proposed Amended Particulars of Claim continue in the following way:
“The Report, by setting out how payment from the office account of the £4,500 on the relevant date would have put the account in excess of the Claimant’s overdraft limit some eight days after that transfer, implies that the payment from the client account was deliberate. This implication is wholly without foundation, not least in view of the Claimant’s administrative disorganisation, which was characterised for the most part by his delays of months, to his detriment, in billing clients for work done and subsequently transferring monies from client to office account, which disorganisation was known to those responsible for drawing up the Report through, in particular, the 7th Defendant, as a result of the Inspection. At the time of the error in payment of the £4,500 the Claimant not only had more than sufficient moneys on office account (from which the payment was intended to come) to cover the payment, as the Defendants acknowledge, but at the later time when the Defendants allege the Claimant would have had insufficient moneys, he had substantial monies in his client account which either had been billed, but not yet transferred, though they could properly have been so transferred, or which could (on billing and notification to the clients) properly have been transferred to his office account. Further, the Claimant had regularly been granted extensions to his overdraft facilities either formally or informally. Nor does the Report record that the Claimant remedied the incorrect payment promptly on discovering it (on the third working day after his bookkeeper notified him, this notwithstanding the huge additional volume of work generated by the Inspection of which he was notified on the same day as he was notified of the mistaken payment). The partial account of the £4,500 payment made in error from the Claimant’s client account, and of the Claimant’s financial situation at that time, gives a wholly misleading impression as to the significance of that payment. This example was then relied upon in the 6th Defendant’s Case Note in the Professional Regulation Adjudication Panel to indicate suspected dishonesty on the part of the Claimant. The 7th Defendant would, further, have been aware from his familiarity with the Claimant’s accounts that the Claimant’s bank did not charge him unauthorised borrowing fees, the threat of such fees being a suggested reason for the payment of £4,500 being alleged to be deliberate. The partiality of the Defendant’s account, taken with the many others in the Report, is evidence that those responsible for drawing up the Record, and through them the First Defendant, had determined to treat the Claimant as dishonest and to secure an intervention into his affairs regardless of the true position.”
The 7th Defendant would, further, have been aware from his familiarity with the Claimant’s accounts that the Claimant’s bank did not charge him unauthorised borrowing fees, the threat of such fees being a suggested reason for the payment of £4,500 being alleged to be deliberate. The partiality of the Defendant’s account, taken with the many others in the Report, is evidence that those responsible for drawing up the Record, and through them the First Defendant, had determined to treat the Claimant as dishonest and to secure an intervention into his affairs regardless of the true position.”[89]Mr Adams asserts in the proposed Amended Particulars of Claim that he remedied the incorrect payment on the third working day after it was notified to him by his bookkeeper. If that is so, it must be a matter of judgment as to whether that was as soon as possible after notification of the issue. At all events, I have noted that the pleading does not identify the date upon which he alleges that he was told this by the bookkeeper, but that his 6th Witness Statement (at paragraphs 73 and 76) says that he was informed of the error on 17 March 2004 (which was, of course, some six weeks after the error was made) at a stage when his bookkeeper was, he said, catching up with material that he and his ex-PA were sending to her.[90]I cannot, of course, make a finding of fact on this issue and the precise assertion that he was told about this on 17 March seems to have been made for the first time in his 6th Witness Statement which was served in the circumstances I have identified in paragraph 66 above. I do not believe that the Defendants have responded to this precise assertion. As I have said, I cannot make a finding of fact, but I can make an assessment of whether the explanation given by Mr Adams for the incorrect use of the £4,500 on the date it was withdrawn from the client account is likely to be regarded as a realistic explanation or as a fanciful one. In my view, the convoluted explanation set out in the proposed Amended Particulars of Claim referred to in paragraph 87 above is likely to be regarded as intrinsically highly improbable – and the more so when judged against the background of the circumstances of the £95,000 issue and indeed the other matters to which I will refer below. Given that, and the fact that the FIR is, to my mind, largely simply a factual account of what the investigators found, I cannot see how Mr Adams can succeed in suggesting that this evidences some misfeasance in public office, whether of the targeted or untargeted variety. It is, however, noteworthy that he blames the occurrence of this breach of the SAR (plus one other matter that I have not referred to specifically) on Mr Heelam, in particular, for the way he treated him during this period. Mr Adams suggests that Mr Heelams’ conduct towards him was “particularly abusive” at the time and was “directly responsible” for the breaches occurring: see paragraph 75 of his 6th Witness Statement.[91]It does have to be observed, even at this stage of the story, that so far as Mr Adams is concerned the responsibility for what had occurred was either that of the Law Society (particularly through Mr Heelam), his bank manager and his bookkeeper. He accepts little, if any, blame himself.

Transfers from client account before bills submitted

[92]I will come to the third area I identified in paragraph 45(iii) above. Mr Adams’ essential complaint is that these matters were never put to him so that he could respond. In the proposed Amended Particulars of Claim the following is asserted: “The allegations … of transfers of costs by [Mr Adams] prior to the delivery of bills … were never put to [him] who was denied the opportunity to respond to them. [He] denies these breaches in so far as it is alleged that some bills were not delivered to clients at all. His response to these allegations, not having been made to him prior to the Report, is hampered by the fact that the Defendants have lost at least one of the files or they are otherwise not available to [Mr Adams]. To the extent that some bills were delivered a few days late, this was the result of [his] lack of secretarial support, and typically took place after [he] had (because of administrative difficulties) delayed in claiming fees properly owing to him for periods of months. Any such delays as may have occurred cannot reasonably (or at all) be regarded as evidence of dishonesty on [his] part”.[93]If these matters had stood in isolation, then I would, for my part, have said that they would not necessarily have evidenced dishonesty on his part and it would not necessarily have been reasonable to suspect it based on these matters alone. However, coming as they did in the wake of the earlier matters, they certainly evidenced a somewhat cavalier approach to the sanctity of the client account and a willingness on his part to cut corners in the administration of his practice from the point of view of financial matters. Taken with the other matters they assist in building the picture of the existence of dishonest practices.

Client care letters

[94]In relation to the matters contained in the FIR to which I referred briefly in paragraph 48 above, I should record Mr Adams’ response. As to the lack of “client care” letters, my reading of the relevant part of the proposed Amended Particulars of Claim is that he does not dispute that there was no formal “client care” letter in those instances referred to in the FIR, but that he “did in fact give adequate costs information to the clients … and that the clients accepted such information and made no complaint as to the bills delivered or the fees charged”. He asserts that each of the instances where his billing practices are criticised by the investigators that, if the merits of the position had been examined, no client would have said that he had been badly or dishonestly treated.[95]For my part, I am unable to see how the way in which the investigators expressed themselves evidences some kind of malevolent attitude towards Mr Adams. They were entitled, as it seems to me, to draw attention to files where there was no “client care” letter of the sort required by the Law Society. Whilst the lack of a “client care” letter would not of itself necessarily connote dishonesty, the fact that no clearly documented information about costs, charging rates and so on existed offers scope for dishonesty at a subsequent stage. I do not see the fact that a client has not complained as something that is to the point and I do not see why the investigators should have been influenced by any such consideration.

Charges for disbursements

[96]There was a criticism in the context of Mr Adams’ billing practice of occasions when he charged sums as “disbursements” either when he used an “expense rate” of charge (which included office overheads) or when he had not spelled out the precise basis upon which overheads were to be charged. Reference was made in the FIR to an article in the Law Society’s Gazette suggesting that the practice of charging for disbursements when in truth they were office overheads catered for elsewhere was “dubious” and “verges on the dishonest”. Mr Adams was critical of this assertion, suggesting that the quotation was selective.[97]For my part again, I do not see how the way the FIR was composed in this respect could possibly be said to evidence or display hostility towards Mr Adams or represent some kind of manufactured hint of dishonesty. The logic of the guidance given by the Law Society (referred to in paragraph 45 of the FIR) is unassailable and where evidence is found that it has been ignored or overlooked (or the position is not made clear to the client) it is evidence that any investigator is entitled to put forward not only in its own right, but more particularly as part of an overall pattern of what is revealed about the solicitor’s practice. There is, in my judgment, no foundation for the suggestion that this represents anything more than simply recording what the investigators found.

Charging twice

[98]Mr Adams complains about the part of the FIR in which it is suggested that he charged a client (‘SI’) twice for the same period without having done any extra work. The Report had drawn attention to the fact that on 13 February a bill in the sum of £4,000 (plus VAT) was drawn, though not sent to the client until 19 February. Despite this the sum of £4,000 (plus VAT) was transferred to the office account from the client account on 13 February. The bill was expressed to be an interim bill “on account of our final invoice, to include our final charges and all disbursements to follow shortly”. A further bill of £1,000 (plus VAT) was sent to the client on 22 March for the same period of work as was specified in the first bill referred to above and it ended with the same words as those set out in that other bill.[99]The proposed Amended Particulars of Claim suggests that the FIR “failed to disclose the fact that [Mr Adams] had won a significant victory for this client which included … exposing and establishing, to the satisfaction of the Appeals Tribunal, that the client’s ex-partner had committed a fraud on the client and the [Child Support Agency]; had kept him informed about fees; had exposed the fraud by his client’s former partner; had delayed billing the client (who was of very modest means) to assist him; and had undertaken work without being put in funds except as to counsel’s fees”. It is alleged that the way the Report was prepared was “designed to create the impression of dishonesty” and “entirely, and culpably” ignored the fact that Mr Adams had informed the client in writing that he estimated his costs at £5,000-£5,500. Mr Adams submits that this was plainly intended by those drafting the Report to give a deliberately misleading impression.[100]Mr Adams asserts that he had informed ‘SI’ in writing of his estimated fees, though the FIR says nothing about that, merely recording that there was “no client care letter on this file”. It would, of course, be surprising if a letter of the sort mentioned by Mr Adams was indeed on the file and yet no reference to it was made by the investigators. That does call into question whether there was any such letter. However, the point of the criticism in the FIR was, as I read it, simply that Mr Adams appeared to be charging twice for the same period of work. It was a legitimate comment and, given everything else that was happening in February (particularly on or around 13 February), it was not wholly inappropriate to suggest that it was part of Mr Adams’ “manoeuvring” of money to keep the bank off his back. Any such suggestion by the investigators, if that was what was intended, could not possibly be said to be of the malevolent quality necessary for a case of misfeasance in public office to be made out.

The dispute with ‘SH’

[101]The dispute involving SH (see paragraph 49 above) became a particular bone of contention for Mr Adams and another instance in which he took great exception to the way Mr Heelam acted. It was Mr Heelam who issued the section 44B Notice on 10 June 2004. Mr Adams wrote a 9-page letter to Mr Heelam dated 7 July 2004 dealing with his complaints about the way the whole issue with SH had been handled. I can, however, deal with it relatively briefly for present purposes.[102]It is not in issue, I believe, that on 10 June 2004 a notice under section 44B was issued to Mr Adams requiring him to produce to the Law Society SH’s files and accounting records by 29 June. In other words, starting from the date of issue of the notice a little short of 21 days was given for Mr Adams to comply. As the FIR correctly recorded, Mr Adams did not comply. However, the FIR did not record the reasons why.[103]The principal issue that Mr Adams took was that, by the time the section 44B notice was issued, he was in effect obliged to surrender the documents to SH pursuant to a direction of the court in proceedings between him and SH and that to have complied with the notice would have placed him in breach of that obligation. Indeed in the proposed Amended Particulars of Claim it is alleged by the time the section 44B notice was served he “had undertaken to the court to produce the files” to SH. It should be noticed that he had previously taken the stance (and indeed continued to do so) that since, as he suggested, the Law Society’s policy was not to investigate complaints when there was parallel civil litigation between the complainant and the solicitor until the litigation was resolved, it was wrong for the SRA to be investigating the matter. The SRA took a different view.[104]So far as the principal issue taken by Mr Adams was concerned (see paragraph 103 above), it appears that he mentioned it for the first time in a fax to Mr Heelam on 29 June, the day the order was to be complied with. Although I have not seen that fax, Mr Adams quotes from it in his letter of 7 July. Paragraph 1 of the fax was apparently in the following terms:
“In my view it would be improper for me to part with possession of property which the court may be about to pronounce on. For the Law Society to require me to do so is grossly improper at the very least.”
[105]The position, as I understand it, is that there was a hearing in Central London County Court on 10 June when SH was seeking summary judgment against Mr Adams. Judgment was reserved and the judgment was to be given on 8 July. The order made was in the terms I have indicated in paragraph 49 above. Mr Adams says that at the time the section 44B notice was served on him (which he says was on 14 June) the court “was about to embody in its forthcoming order a formal direction that [he should hand] the file to [SH]”. According to Mr Adams’ letter of 7 July, it was conceded in his Counsel’s skeleton argument and by Counsel orally at the hearing on 10 June that the file should be delivered up. As I have said, Mr Adams says that he did not receive the section 44B notice until 14 June and, accordingly, it was too late for him to change the position he and his Counsel took at court.[106]As I have said, Mr Adams’ principal complaint is that the FIR did not record this part of the story: it simply asserts that he failed to comply with the order. This, he contends, evidences a deliberate policy to make him look dishonest whereas there was, had the full picture been given, reason to challenge any such perception.[107]There is no doubt that the FIR could have referred to the reasons given by Mr Adams for not complying with the notice. It might indeed have given a fuller picture if reference to it had been made. But there are really two questions for present purposes:(1) Was the failure to mention it evidence of misfeasance in public office?(2) Would reference to it have made any difference to Mrs Giles’ Note and the ultimate decision of the Adjudication Panel? I will endeavour to answer (2) first. As I have indicated, Mr Adams sent a fax on the day he was supposed to comply with the notice saying that he would not do so for the reasons he gave and he followed it up with a lengthy and strongly worded letter of 7 July. I am bound to say that all this would certainly have looked to anyone reading his communications, particularly against the background of the stance he had taken previously, as simply another reason for not co-operating with the Law Society. For my part, I do not understand why, given that he had solicitors and Counsel acting for him in the civil proceedings with SH, he did not ask his solicitors to write to the District Judge (copying the letter to the Law Society) indicating that since he had offered (my word, rather than any of the words that Mr Adams has used) to hand over the files as part of any order made by the court he had been served with the section 44B notice and either asking the District Judge to release him from his offer or to invite the Law Society to await the outcome of the District Judge’s judgment. As it was, his fax and his letter will have generated more heat than light.[108]Ultimately, the issue that arises from SH’s affairs was Mr Adams’ billing practice and suggestion that he had transferred £23,500 of SH’s money from client account to the office account when a question arose as to whether the client had been billed. The memo discovered in the file (referred to at paragraph 94.2 of the FIR) at least lent some support to the view that the bills had not been delivered to SH.[109]My conclusion, doing the best I can on this material, is that reference to Mr Adams’ reason for not complying with the section 44B notice would not have altered the balance of the FIR in any significant way. Equally, however, I am quite clear that the way the particular issue was reported (and indeed referred to by Mrs Giles) can in no way evidence some kind of “animus” towards him. He may not have helped his own cause by the aggressive stance he had adopted in the correspondence with Mr Heelam, but it is a very large step to take for someone such as Mr Heelam to put forward a deliberately misleading feature of the Report which is, in effect, what Mr Adams is alleging.[110]Again, I am unable to characterise this particular matter, either as a single issue or as part of a series of issues, as one which gives rise to or amounts to an arguable case of misfeasance in public office.

Significant client balances retained

[111]I will now turn briefly to the matter identified in paragraph 50 above, namely, the retention by Mr Adams of significant client balances after the substantive matters to which they related were long since completed.[112]In order to put Mr Adams’ complaints in this context into perspective, I should record what the Case Note said about the paragraphs in the FIR that dealt with these matters. As recorded in paragraph 57 above, it was in these terms:
“The Panel may wish to ask the question – why has Mr Adams failed to account to clients for those sums? Bearing in mind the instances detailed in the [FIR] of Mr Adams using client money for office and personal expenses, the Panel may wish to consider whether this money is at risk. In this connection, the Panel might also wish to bear in mind the financial pressures faced by Mr Adams in the light of his Individual Voluntary Arrangements…and the moneys required it to be paid into court as a result of the summary judgment [in the proceedings with SH]….”
[113]The essence of Mr Adams’ complaint about this part of the FIR and the subsequent Case Note is encapsulated in the proposed Amended Particulars of Claim in this way:
“(12) The reference made in para. 102 to there being client accounts with significant balances did not appear at the time of the Report itself to disclose any allegation of wrongdoing, but read with the Office Note disclosed to the Claimant on 3 September 2004 contains the implication that the Claimant intended to steal these balances. In the absence of any evidence that the Claimant was acting improperly with respect to long-standing balances, such implication was entirely unwarranted and perverse. The non-disclosure of this allegation to the Claimant even at the time of the intervention itself had the effect of hampering his ability to defend himself against this entirely unwarranted allegation. Further, the statement made at para. 102 that the Claimant had “eventually” provided only 14 of 15 client files sought, is misleading in that it suggests, in the context of the Report taken as a whole, culpable failure on the part of the Claimant with regards to disclosure. In fact, these files were demanded on the second day of the Inspection of which the Claimant had been given only three days’ notice, his request for deferral to allow him a reasonable period of time to prepare having been rejected by the Fourth Defendant who had assured the Claimant by telephone on 17 or 18 March that the Claimant would not be expected to produce everything in time for the Inspection and could produce materials as and when he could after the first day thereof. To the Claimant’s recollection the fourteen files were in fact produced on the same day, 24 March 2004, or on the following day 25 March or on 30 March (the Defendants having suspended the Inspection on 25 March and reinstated it on 27 March, a Saturday, attending again on Tuesday 30 March).”
[114]It is also alleged that the Case Note failed to point out that Mr Adams had at all times complied with the payment terms of the IVA arrangement.[115]I am not at all sure that the Case Note went so far as to suggest, as Mr Adams says it did, that he “intended to steal” the balances that had been retained. It certainly drew attention to the potential risk to those funds which might, on one interpretation, suggest that they were at risk of being appropriated permanently by Mr Adams. On the other hand, the suggestion may simply have been that, given the clear evidence that there was of what I have described elsewhere in this judgment as the “manoeuvring” of money between the client and office accounts, there was a risk that something of that nature would arise.[116]Again, however, for present purposes the question is whether these comments were so obviously beyond anything that could be described as reasonable and measured as to constitute evidence of misfeasance in public office. I am quite unable to see how they could be so described. On the basis of what was set out in the FIR I cannot see that anyone would say that they were other than entirely justified. So far as the FIR itself is concerned, it seems merely to have set out the facts as found by the investigators and I cannot identify anything that they did (or did not do) which could arguably evidence the kind of bad faith that Mr Adams suggests the investigators must have had.

Failure to mention positive aspects

[117]Before drawing this analysis to a conclusion, I will return to the complaint that Mr Adams makes, namely, that the FIR did not mention at all the positive aspects about him and his career that were reflected in the document given by him to Mr Johnston: see paragraph 34 above. Mr Adams, in his oral argument before me, contended that any “balanced regulator” would “put the good things” into a report of the nature of the FIR as well as adverse things.[118]It is not for me at this point in a case of this nature to comment on the general position so far as regulators are concerned: the main issue I have to resolve is whether the failure to incorporate “the good things” about Mr Adams in the FIR evidences bad faith such as to add up to, or to contribute to, a case of misfeasance in public office. I cannot answer that without at least expressing a provisional view on the more general question raised by Mr Adams, namely, that it does not appear to me to be incumbent on investigators who are investigating possible financial irregularities in a solicitor’s practice either to ask about previous good conduct of a solicitor or necessarily to report upon it if volunteered by the solicitor. One can, of course, think of parallels in other investigatory situations where this would not seem appropriate. Mr Adams was asking them to take at face value the contents of his note. I have no reason to doubt its accuracy, but the investigators might have felt that they could not put it forward as part of their report simply based on Mr Adams’ say so given the other matters they had discovered about his practices - or they may simply have not regarded it as at all relevant. At all events, whatever the reason for not mentioning these matters in the Report, I can see no possible basis upon which it could be said to constitute or contribute to an arguable case of misfeasance in public office.

Conclusion on the misfeasance case

[119]As I have already indicated, I cannot possibly focus on every issue that has been raised by Mr Adams about the FIR and the Case Note, nor about the investigation carried out into his practice. I have, however, focused on those issues which, as it seems to me, constituted the most serious matters from the point of view of his practice as a solicitor. I have done so to see whether there is any “real” as opposed to a “fanciful” prospect of successfully contending that the way these matters had been dealt with amounted to misfeasance in public office (or, for that matter, breaches of his individual human rights).[120]On my analysis of these matters, I do not consider that there is any real prospect of success and I do not consider that there is any real substance in the case he seeks to advance. It may be that if one analysed every sentence in the FIR and every document that could be found, there might be some instances in which the FIR could be shown to have been inaccurate. However, that is a completely different scenario from one in which that document could be said to have been the product of deliberate manipulation by investigators who were “out to get” Mr Adams for no obvious reason - and Mr McClelland makes the fair point that, even now, Mr Adams has suggested no motive on the part of the investigators for wanting to “get” him. The process engaged in by the investigators (who were investigating because of several independent complaints against Mr Adams) was designed to see in the public interest if clients’ money was being properly accounted for and/or was at risk. There was, in my judgment, ample reason for the investigators (and Mrs Giles and the Adjudication Panel) to be concerned and, if only on the basis of the £95,000 issue and the £4,500 issue (though in reality much more), ample reason to suspect dishonesty even if in fact there was none.[121]The dishonesty, I repeat, is not dishonesty in the sense of Mr Adams stealing clients’ money by taking it permanently for his own use. However, there was a clear basis for suspecting that he was “borrowing” or “manoeuvring” clients’ money to prop up his office account when he needed to do so and clear evidence that he turned the banker’s error relating to the £95,000 to his own temporary advantage. It is not for me to say whether that was honest or dishonest, but there can be no doubt that it was the kind of conduct capable of amounting to dishonest conduct as a case such as Jackson v The Law Society (see paragraph 83 above) demonstrates.[122]I can see no basis upon which the claim for misfeasance in public office could succeed against any of the Defendants. If I was to permit the proposed Amended Particulars of Claim to be filed I would go on to give summary judgment in favour of the Defendants under CPR 24.2 on the basis that there was no real prospect of success. The same must apply to the claim Mr Adams advances based upon the alleged breaches of his rights under the ECHR which itself relies upon the same allegations as those relied upon for the case of alleged misfeasance in public office. That claim, in so far as it was brought against the individual defendantsis misconceived because, as Mr McClelland rightly submits, they were employees of a public authority (the Law Society), but they are not themselves “public authorities” within the meaning of section 6(3)(b) of the Human Rights Act. The purported claims under the Human Rights Act against each of the individual defendants would have fallen to be struck out in any event. But the claim against the Law Society based upon their acts could not succeed.[123]This conclusion renders it unnecessary to decide whether it would be appropriate to permit the claim based on the Human Rights Act to proceed outside the one-year normal time limit. In my view, Mr Adams would have faced a very uphill struggle in that regard. Whilst some part of the period might have been excused on account of what appear to have been genuine health issues, I am unable to see why the proceedings could not have been brought much earlier. At all events, the issue is academic and I say nothing further about it.[124]This overall conclusion means that, whether or not I accede to the other applications made by Mr Adams, I would dismiss the claim. I will, however, indicate briefly the position I take in relation to those other applications.

The procedural history

[125]As I have indicated, the Adjudication Panel resolved on 31 August 2004 to intervene in Mr Adams’ practice and also to bring proceedings against him in the SDT. The effect of that decision was as indicated in paragraph 9 et seq above.[126]Mr Adams had the right to challenge the intervention in the manner described in paragraph 18 et seq. In fact he applied for an interim injunction on 3 September 2004 to restrain the intervention. Laddie J refused to restrain the intervention but set down an accelerated timetable for Mr Adams to seek the withdrawal of the intervention in accordance with the practice I have set out above.[127]On 8 September 2004 Mr Adams issued proceedings seeking the withdrawal of the intervention as well as seeking compensation (including compensation for alleged infringement of his rights under the ECHR) and a declaration of incompatibility under the Human Rights Act of various features of Schedule 1 of the Solicitors Act 1974.[128]This process of seeking the withdrawal of the intervention must, of course, move quickly if it is to give the solicitor any prospect of “rescuing” his practice from the consequences of the intervention (see the quotation in paragraph 21 above). However, these proceedings were not brought to a hearing until 3 March 2006, some 18 months after the proceedings were instituted and then upon an application by the SRA to strike out the claim. In the meantime Mr Adams had sought an adjournment of the proceedings on several occasions.[129]His Honour Judge Weeks QC struck out Mr Adams’ claims holding that the claims under the HRA could not succeed in the light of Holder v Law Society (see paragraphs 20-22 above) and that the claim to set aside the intervention had no prospect of success because (as a result of Mr Adams’ “inexcusable delay”)the intervention was substantially complete. Mr Adams application for permission to appeal against this decision was rejected by Hooper LJ on 19 December 2006: see paragraph 23 above. His subsequent appeal to the European Court of Human Rights was rejected without a hearing.[130]In the meantime, on 23 September 2006 it was agreed to stay the disciplinary proceedings before the SDT indefinitely upon Mr Adams undertaking to cease practice. The background to this was Mr Adams’ mental illness and general ill-health. I have seen in the papers before me a report from a Consultant Psychiatrist at that time indicating that Mr Adams was suffering from a depressive illness that required treatment and that he was not “in any fit state at the moment to be able to conduct his business or to be in a position to attend a tribunal or court.” That report was available to Hooper LJ: [2006] EWCA Civ 1857, para. 16.[131]There matters rested for about 4 years until Mr Adams sought to institute these proceedings. The intervention had taken place on 31 August 2004 and it was 6 years later, in August 2010, that he sought to institute these proceedings, just a few days inside the limitation period.[132]The Claim Form was issued on 10 August 2010 indicating that the Particulars of Claim were to follow. The assigned Master was Master Eyre. He endorsed the Claim Form as follows: “To issue, but this claim form must not be served pending order”.[133]A Claim Form must, of course, be served (in the way provided for in CPR 7.5) within 4 months of issue. In this case Mr Adams had to serve the Claim Form by 10 December. According to Master Eyre’s direction he could not do so without further order. On 8 December Mr Adams applied to extend the time for service of the Claim Form and Particulars of Claim and to join an additional defendant, Ms Woodfield, and the executors of Mrs Giles.On that day Master Fontaine extended time to 12 January 2011 with the remainder of Mr Adams’ application being stood over.[134]Mr Adams had served draft Particulars of Claim, presumably for Master Eyre to consider, but in an order dated 11 January 2011 the Master noted that they were “gigantically over-long” (running to 238 pages with a glossary of no fewer than 33 abbreviations) and were set out “in a manner that is utterly unfair to the Defendants, unhelpful to the court and contrary to the Rules.” He also said that “no reasonable cause of action is disclosed.” He directed that that Mr Adams should file and serve draft Particulars of Claim by 1pm on 8 February 2011 and stayed the action “pending further order”. He gave directions as to how the draft Particulars of Claim should be presented.[135]On 12 January Mr Adams applied to the Practice Master, Master Fontaine, for an order extending time to serve Claim Form and to file draft Particulars of Claim. She extended the time to 16 February 2011. Various other applications to extend time were made and agreed to by the Defendants until 24 March when their solicitors indicated that they were no longer prepared to consent. On 30 March Mr Adams applied by an Application Notice for an extension of time from 22 March to 20 April 2011 because of the need to instruct fresh counsel.[136]The hearing of this application took place on 14 April on which day Mr Adams submitted a witness statement in support. Master Eyre refused the application and said this in the order he made:• The Claimant has repeatedly obtained extensions of time in which to comply with [the order of 11 January 2011].• The Claimant’s witness-statement of 14/04/11 gives no remotely adequate reason for a further extension.• Moreover, that witness-statement makes it even more apparent that the action is an attempt to re-litigate, if not a ruling by the Solicitors’ Disciplinary Tribunal, an intervention by the First defendant.• So far as the action is based on the Human Rights Act 1998, the action is long out of time, and no ground is provided for considering any extension to the time-limit.• The action, which is after all brought by a former solicitor, accordingly represents the plainest possible infringement of Rule 3.4(2) of the Civil Procedure Rules.[137]It was that order that led to Mr Adams’ applications dated 24 June 2011 which are before me.[138]I think it should be said that whatever issue it might be argued that Mr Adams is seeking to re-litigate (as to which see paragraphs 142-149 below), it is not, with respect, “a ruling by the Solicitors’ Disciplinary Tribunal” as Master Eyre’s note in part suggests. If it is re-litigation, it is the issue of the intervention and the way Mr Adams’ attempt to challenge the intervention was dealt with by His Honour Judge Weeks QC (see paragraph 146 above) that gives rise to this argument. Was Master Eyre right to prevent service of the Claim Form?[139]In the Skeleton Argument that she prepared in support of Mr Adams’ applications Professor McColgan submitted that Master Eyre had misapplied his case management powers under the CPR by preventing service of the Claim Form in time. Mr McClelland submits that intervention of this sort is contemplated by paragraph 2 of Practice Direction 3A which provides that if a court officer is asked to issue a claim form which is believed to be an abuse of process he should issue it, but should then consult a judge who may, on his own initiative, make an order designed to ensure that the claim is disposed of or proceeds in a way in accordance with the rules.[140]I have not heard sustained argument about this issue and I am not sure that I need to reach a concluded view. There are undoubtedly wide case management powers within the rules which, of course, must be exercised in accordance with the overriding objective. To that extent, I do not think I could say that what Master Eyre did when endorsing the Claim Form in the way he did was beyond his powers. However, some considerable caution needs to be exercised when the Claim Form is issued very close to the expiration of the limitation period. Since the Claim Form is the formal notification of the claim to the proposed defendant(s), it may be important (for example, in the context of the policy of a particular institution concerning the destruction of files or documents) for that formal notification to be served so as to ensure that neither party is disadvantaged. In this case, there is no suggestion that either party would have been disadvantaged by the delay in serving the Claim Form and the Particulars of Claim and, accordingly, I would have not seen any difficulty in either giving permission for the service of the proceedings out of time or for extending time to enable the proceedings to continue if the objection to doing so was based solely upon any delay attributable to Master Eyre’s direction. Furthermore, whilst some of the reasons given by Mr Adams for seeking further time between December and April 2011 were less than compelling, I might have been persuaded that I should not prevent the proceedings from continuing if I had been persuaded that there was a real prospect of success for the claim. However, as will be apparent, I have not been so persuaded.[141]At all events, for my part, I would not have seen the procedural difficulties as representing the obstacle to this case proceeding if there was a real prospect of success. Mr McClelland is probably right that since the Master had already declined an extension of time to file his Particulars of Claim, Mr Adams’ proper remedy would have been to seek permission to appeal against the Master’s order. But for the lack of merit in his claim, I would have been inclined to give permission to appeal against the Master’s order, allow the appeal and permit service of the proposed Amended Particulars of Claim (subject, I should say, to whether the claim should not be permitted to proceed for any of the other reasons to which I will refer below). Should the claims be struck out as an abuse of process?[142]Mr McClelland submits that that the real target of Mr Adams’ present claim is the intervention, which he considers to have been unjustified, and he now seeks to reverse its effects. The present claim, he argues, is in substance an attempt to reopen the basis for the intervention ex post facto and through the proxy of a claim for compensation. If he achieves that he will, it is argued, achieve the erasure of his obligation to pay the intervention costs. Mr McClelland contends that Mr Adams has already sought to challenge the intervention, but the proceedings were dismissed principally as a consequence of his own delay.[143]He contends thatParliament has prescribed a specific and expedited mechanism by which a solicitor may challenge and set aside an unjustified intervention (see paragraph 18 et seq above) and that had Mr Adams progressed the those proceedings as he should have done (and as the SRA invited him to and as he was directed to do by the Court) there would have been a speedy trial and the essence of the current claims would have been determined. That he has not had a resolution of those issues is because he failed to take the opportunity to do so given by statute and, accordingly, cannot now seek to re-open and re-litigate materially the same issues by launching fresh proceedings. Mr McClelland seeks to fortify this argument by suggesting that had Mr Adams’ claim in the intervention proceedings been dismissed following a full determination of his allegations, then it would have been an abuse for him to seek to re-litigate those matters in these proceedings. He submits that it would be perverse if Mr Adams’ position were to be improved by the fact that his earlier claim was in fact struck out due to his own inexcusable failure to progress it. If anything, he submits that that procedural background should reinforce the concerns that Mr Adams’ present action constitutes an abuse.[144]There is a superficial attraction to these submissions, but I am unable to accept them as they stand.[145]The jurisdiction of the court on an application under paragraph 6 of Schedule 1 to the 1974 Act (and thus as conferred by Parliament) is either to direct the withdrawal of the intervention or not to do so. There is no power to order compensation, either on the basis of a claim for breaches of the ECHR, for misfeasance in public office or any other cause of action. A claim to that effect, unless in some way the procedures under the Solicitors Act are supplemented to accommodate it, will not normally be made at that time and it is to be noted that an application under paragraph 6 of Schedule 1 is made by way of a Part 8 claim. It would, it seems to me, be very unusual for such a claim (which would involve all the usual incidents of a civil claim, including disclosure) to be mounted in the context of the rapid procedure contemplated by Schedule 1 of the Solicitors Act. I do not say that it could not be achieved, but it would, to my mind, not be what either the Law Society or the individual solicitor would ordinarily contemplate, nor would it be what the court would anticipate.[146]That, as I have said, would be the normal position. However, Mr Adams (having dispensed with the legal team that represented him before Laddie J) made his Part 8 claim seeking the withdrawal of the intervention, but at the same time, according to paragraph 14 of the judgment of Judge Weeks QC, he requested compensation for the interruption of his practice, damages pursuant to the Human Rights Act and/or at common law for breach of statutory duty (according to Hooper LJ: [2006] EWCA Civ 1857, para. 6), a declaration as to the construction of the words “reason to suspect dishonesty”, a declaration of incompatibility and interest. For whatever reason, Mr Adams did not prosecute his proceedings under the Solicitors Act expeditiously, but there is no doubt that he did raise in those proceedings(i) the question of some kind of relief under the Human Rights Act and(ii) his concerns about the report upon which the intervention was ordered (ie. the FIR). I will quote what

Judge Weeks said in paragraphs 43 and 44 of his judgment:

“44. … Mr Adams says that the Law Society has been fraudulent and deceitful in the way that it reported on him and in the manner in which it has pursued its opposition to his application. Those are serious charges which he wants to ventilate at a trial and he wishes to be able to prove; he says he has evidence that the Law Society deliberately falsified parts of its report or, at very best, omitted important evidence in his favour so as to give a false impression. Still less is that a reason for having a trial of this case. 45. As I have said several times in the course of this judgment, part 6 is a summary remedy for a solicitor to put an end to an intervention. It is not a suitable place for ventilating grievances about the conduct of the Law Society. All the more so because, in the proceedings he has started on by Part 8, there are usually no statements of case or defence. Quite often there is no cross-examination and the salient points have to be taken out of the witness statements. Such a procedure is wholly unsuitable for disputed issues of fact particularly where issues of the honesty and propriety of those who were charged with the serious matter of reporting on the conduct of solicitors is concerned. That is not any reason for having a trial.”
[147]Judge Weeks obviously took the view that an application under paragraph 6 of Schedule 1 was not the place to ventilate issues concerning the conduct of the Law Society, its investigators and its officials. That view was endorsed by Hooper LJ by virtue of dismissing Mr Adams’ application for permission to appeal. I respectfully think that the view expressed was entirely correct for reasons I endeavoured to articulate above.[148]The question is whether having (unwisely and incorrectly) tried to raise the issues concerning the FIR (and associated issues) in those proceedings precludes him from doing so subsequently and thus, in principle, whether it precludes him from doing so in these proceedings.[149]Although, given the conclusion I have reached on the merits, the issue is academic, I am of the view that he would not in principle have been precluded from bringing a claim for compensation based upon misfeasance in public office and/or the Human Rights Act in separate properly constituted proceedings brought in the usual way. As I have indicated, the issues in the proceedings under the Solicitors Act are of a different kind and, whilst, of course, there may be issues raised in those proceedings which are closely related to issues that could be raised in the claim for compensation, I do not see why a solicitor who, by statute, is obliged to take High Court proceedings of a summary nature to seek a withdrawal of the intervention should necessarily be precluded from raising a claim in damages subsequently if he or she has grounds for doing so. Equally, a misguided attempt to do this in the summary procedure to which I referred is not something which, in the ordinary way, should operate as a bar to bringing appropriately constituted proceedings. The problem for Mr Adams is that he does not have any grounds for pursuing such a claim that have any real prospect of success. Are the FIR and the Case Note covered by absolute privilege?[150]Mr McClelland submits that the absolute privilege or immunity that attaches to statements preparatory to potential regulatory or Court proceedings applies to the FIR and the Case Note. He contends that since these documents were prepared for communication between SRA personnel with a view to determining whether disciplinary proceedings should be commenced and, if commenced, to their being adduced as evidence in support of those proceedings, the documents “fall squarely within the established immunity” and the allegations about these documents should be struck out.[151]The leading modern authority on the “established immunity” is Darker v Chief Constable of the West Midlands [2001] 1 AC 435 which was itself considered more recently by the Court of Appeal in Autofocus Ltd. v. Accident Exchange Ltd. [2010] EWCA Civ 788.[152]In Baxendale-Walker v Middleton and others[2011] EWHC 998 (QB), the claimant (a former solicitor)sought to bring proceedings against a number of defendants including Mr Middleton (the 3rd Defendant in the present proceedings), the Law Society and the SDT alleging that Mr Middleton (the 1st defendant in those proceedings) and the 2nd Defendant (an employee of the SRA) “acting or purportedly acting on behalf of the OSS, formed the joint intention of constructing a knowingly false and fraudulent case against the Claimant with a view to destroying his tax practice and, if possible, to procuring his being struck off the roll of solicitors by the [SDT].” The more detailed pleaded case against those two defendants (and others) was that they had each committed the torts of conspiracy to injure, conspiracy to defraud, conspiracy to use unlawful means and malicious falsehood and furthermore that the 1st and 2nd defendants had committed the torts of misfeasance in public office. The claimant alleged that he had suffered loss and damage of some £229.7 million.[153]All defendants, including the 1st and 2nd defendants, applied to strike out the claim and for summary judgment.[154]Supperstone J, in an extensive judgment dealing with the very large number of issues raised by the parties, held, inter alia, that the claims against “the Law Society defendants” (which included the 1st and 2nd defendants) should be struck out because their actions were “protected by absolute privilege and immunity”. He gave his reason in this way:
“In Darker v Chief Constable of West Midlands Police Lord Clyde … said that the principles governing the immunity of witnesses in connection with judicial proceedings “should be of general application regardless of the particular form of the action”
. The only exception to this principle of absolute immunity for participants in investigations or proceedings is the tort of malicious prosecution or malicious arrest. However the Claimant does not allege that the Defendants have committed this tort. I reject Mr Susman’s submission that the immunity does not apply in the case of an action for misfeasance in public office. The single passage in Three Rivers DC v Bank of England (No.3) at 191E on which he relies does not, in my view, support his submission. Lord Steyn was not there dealing with immunity as such; he was discussing the ingredients of the tort of misfeasance in public office and looking at the state of mind of the Defendant ….”[155]Because the issue is academic in the present case given my conclusions on the substantive merits, I propose to say nothing further on this issue save to observe, with respect, that there may not be that much distinction in substance between the essentials of the tort of (certainly “targeted”) misfeasance in public office in the context of possible disciplinary proceedings and malicious prosecution or malicious arrest. Supperstone J does not refer to Autofocus in his judgment and I venture to think that it may be an issue that may need to be canvassed as to whether the immunity can truly arise when a preliminary report (such as the FIR or the Case Note) is prepared with the kind of malevolence necessary to sustain the tort of targeted misfeasance in public office.[156]At all events, I do not decide this case on the basis that there is or there is not immunity of the sort contended for by Mr McClelland. For the reasons I have given, I do not consider that the proposed claim has any real prospects of success. Causation[157]Mr McClelland argues that even if, contrary to the primary case of the defendants, there is any substance in Mr Adams’ criticisms of the investigation, the fact remains that he has admitted to a degree of administrative (specifically financial) disorganisation which, he contends, is wholly inimical to the safe custody of client funds and that his practice would necessarily have been the subject of an intervention with all the consequences that flowed from it. He submits that Mr Adams could not, therefore, establish causation which is an essential part of his misfeasance claim and that the claim should be struck out on this ground.[158]Whilst I can see the force of this argument, causation is quintessentially a matter of fact (see, e.g., Barrett v Enfield London Borough Council [2001] 2 AC 550, per Lord Browne-Wilkinson at page 557, Lord Slynn of Hadley at page 574 and Lord Hutton at page 590) and I do not think it would be right to strike out a claim where there is at least some doubt about the factual conclusion to which the evidence might give rise. It is just arguable that had the grounds for intervention rested solely on the existence of financial disorganisation within his practice (rather than giving rise to a suspicion of dishonesty) then the intervention might have been arranged and executed differently.[159]Before coming to the overall conclusion, I should return to one matter I said I would come back to, namely, the decision of Mr Adams (and his then Counsel) to issue these proceedings against a number of named individuals as well as the institution of the Law Society. Bringing the claim against individuals[160]Mr Adams has said that he named all the individuals as defendants because he says that he had been advised that this was necessary. It is, of course, true that if an institutional defendant such as the Law Society asserts that the actions of one of its employees was so outside the scope of his or her employment that vicarious liability is not accepted, then the cause of action in misfeasance in public office would have to be maintained against the individual. However, this would be a highly unusual scenario. I have presided over at least one case to my recollection when misfeasance in public office was alleged, but the allegation was simply made against the institution rather than the individual concerned even though the individual was, unsurprisingly, identified in the pleadings.[161]For my part, I would have thought it only when absolutely necessary that the individuals would have to be made defendants in their own right. In the normal course of events, the proceedings can be launched against the institution (with, as I have said, the individuals said to be responsible for the misfeasance identified in the pleadings, the assertion being made that the institution is vicariously liable for their acts) and a defence can be awaited. If the defence asserts that an individual was acting outside the scope of his or her employment and vicarious liability is denied, then an application to amend join the individual concerned could be made.[162]Where, as here, the proceedings are instituted right up against the expiration of the limitation period, it is arguable that, as a precaution, the individuals need to be made defendants. However, the sending of a proper protocol letter in advance should result in it being clear whether the individual or individuals should be added as a defendant or defendants. When it is not done, I can see a court in an appropriate case awarding costs on an indemnity basis against a claimant who takes such a step without having discovered the position in pre-action correspondence: leaving aside the seriousness of such an allegation and the anxieties induced in people who probably thought they were merely doing their job at the time of the material events, it has the potential for increasing costs significantly and unnecessarily.[163]So far as I can judge, the only “pre-action letter” (comprising 23 pages) sent in this case was written on the day when the proceedings were issued (10 August) when Mr Adams indicated that he would be out of the country from the following day until 26 August. He described the individual defendants as being “personally responsible for both the Misfeasances and HRA breaches” and the Law Society as being vicariously responsible for their actions.

Disclosure

[164]One of the matters raised in the “pre-action letter” to which I referred above was Mr Adams’ suggestion that he was entitled to disclosure of internal memoranda, citing Buckley v The Law Society [1983] 3 AER 1039. He maintains that general submission even though the proceedings in which he sought the disclosure were the Solicitors Act proceedings that were in due course struck out by Judge Weeks.[165]The issue found expression in the proceedings before me on the basis, as I understood the argument, that having pleaded the issue of what amounted to misrepresentation and, in some instances, deceit by various individuals in the preparation of the FIR and the Case Note, Mr Adams was entitled to specific disclosure of internal memoranda. He relied upon Arsenal FC Plc v Elite Sports Distribution Ltd [2003] FSR 450.[166]In that case, however,(a) the claim was not struck out as disclosing no reasonable cause of action and(b) once certain words were struck out of the pleading a pleadable cause of action was revealed. It is easy to see why specific disclosure was in those circumstances ordered. In this case, even without the disclosure of further documentation it is possible to see that the case has no real prospect of success. An order for disclosure is, therefore, unnecessary.

Conclusion

[167]For the reasons I have given, I do not consider that Mr Adams’ claims have any real prospect of success and, accordingly, I would grant summary judgment in favour of the defendants pursuant to CPR 24.2 if the proposed Amended Particulars of Claim were permitted to be served. However, I am entitled to take into account the intrinsic merits of the proposed claim in considering whether to grant permission to appeal against Master Eyre’s order of 14 April 2011. Since I regard the case as it is proposed to be advanced as doomed to fail, I decline to grant permission to appeal against the Master’s order.[168]Accordingly, I dismiss the two applications made by Mr Adams. I make no order on the Defendants’ application for summary judgment because, as I have indicated, I have taken into account the merits of that application when considering whether to exercise my discretion in relation to the applications brought by Mr Adams. Had I permitted the proposed Amended Particulars of Claim to be served I would have granted the Defendants summary judgment.[169]The overall result will, of course, come as a disappointment to Mr Adams. Unless he is finally persuaded to give up his crusade against the perceived iniquities of the Law Society’s intervention regime, he will doubtless want to appeal against this judgment. That is, of course, a matter for him, but he needs to be aware that he is getting perilously close to (if indeed he has not already crossed) the threshold for justifying the making of a civil restraint order.

Postscript

[170]At about 16.50 yesterday (16 April) I was handed by Court staff a bundle of material couriered to the Royal Courts of Justice by Mr Adams. It comprises a 34-page document entitled ‘Summary of Claimant’s Written Submissions following hearing on 20/21 March’, a lever arch file comprising a document entitled ‘Claimant’s Written Submissions following hearing on 20/21 March’ running to 133 pages (and dated 4 April) and a number of other documents including a number of previous authorities and reports of decisions of the SDT.[171]The material to which I have referred was accompanied by a letter from Mr Adams to my Clerk dated 16 April and a letter to Mr James Tipp, of QB Listing, of the same date referring to a telephone conversation between them “this afternoon”. The letter to my Clerk indicates Mr Adams’ reasons for supplying the material and for the delay in doing so.[172]At the conclusion of the hearing on 21 March (at or around 5 pm, as I recall) I told Mr Adams that I understood the nature of his case and that if, as he wished, he wanted to add anything to what he had put forward orally he could do so in writing by midday the following day. He had an e-mail address for my Clerk. I did not receive anything the following day.[173]I also indicated that my intention at the time was, if possible, to give judgment (by means of a read-out judgment) on a day between 2-4 April, namely, the last 3 days of term and that the parties would hear further about this. Because of other judicial commitments in the meantime that was not possible and the parties were informed of this by my Clerk (by e-mail) on 2 April. They were told that my “current intention now [was] to hand down a written judgment at 2 pm on Tuesday, 17 April.” At no stage thereafter has that intention been modified.[174]I recall hearing from my Clerk that Mr Adams had spoken to him by telephone at about 1.30 pm on 4 April saying that he wanted to lodge further submissions later that day. I asked my Clerk to tell him that I would not be prepared to receive anything further unless it had been served on the defendants’ representatives. I also asked him to indicate to Mr Adams that as far as I was concerned, all matters had been sufficiently canvassed, both orally at the hearing and in the substantial written material submitted, and that I was not minded to consider any further submissions unless they related to something that had emerged since the hearing (for example, an authority that has been reported since then that impinges on his decision). That he did by an e-mail to Mr McClelland and Mr Adams at shortly before 2 pm.[175]My Clerk was told by the defendants’ representatives on 13 April that they had received further extensive submissions from Mr Adams the previous evening. In the light of that I had assumed that he would have lodged them at court. Since no submissions were evident when I returned to the Royal Courts of Justice yesterday (16 March) I caused inquiries to be made as to their whereabouts. It was this that led to Mr Tipp’s telephone call to Mr Adams at about 2 pm yesterday.[176]The judgment that ends at paragraph 169 above was composed in part in the day or so after the hearing in March, but substantially during the Easter vacation. I have looked briefly through Mr Adams’ further extensive submissions and material, but there is nothing within them that either constitutes new material that ought to be taken into account at this stage or which, in any event, alters the substance of my decision. I have not invited any submissions upon it from Mr McClelland.

Cited in 2 later judgments