THE DUTY ON EX PARTE APPLICATIONS: SOLICITOR INVOLVED NOT ALLOWED TO APPEAL TO THE COURT OF APPEAL AGAINST FINDINGS AGAINST HIM

I am returning to the question of the lawyer’s duty on without notice applications. In March 2015 we looked at the case of Boreh -v- Republic of Djibouti [2015] EWHC 769 (Comm)  where Mr Justice Flaux made a clear and unequivocal finding that a solicitor had deliberately misled the court. The solicitor involved attempted to appeal to the Court of Appeal against the findings made against him. In Gray -v- Boreh [2017] EWCA Civ 56 the Court of Appeal refused to entertain the solicitor’s appeal against these findings.

KEY POINTS

• The Court of Appeal may have a very limited discretion to appeal findings of fact made against non-parties.
• That discretion was most probably limited to certain matters of procedure.
• On the facts of this case it was not appropriate to allow the appeal to proceed.
• An appeal would waste court procedures and interfere with the litigants’  article 6 rights to have their cases heard within an appropriate time.

“…I express my concern that to permit a non-party witness in a commercial case of this type to exercise an independent right of appeal, in which he is free to challenge adverse factual findings made against him by a first instance judge, merely on the grounds that such findings have reputational consequences for him, has the potential to lead to highly undesirable satellite litigation. That in my judgment would be likely to waste court resources contrary to the interests of other litigants and to bring the administration of justice into disrepute.”

THE CASE

The claimants/respondents obtained a freezing injunction against the applicant/defendant Mr Borah. At an application to set aside the judge made a finding that he had been misled at the the time of the application for the freezing injunction. The question was whether the claimants solicitor had deliberately and/or recklessly misled the court and, if so, whether the injunction should be set aside.  The judge found that the court had been misled.  Mr Justice Flaux made those findings in unequivocal terms.

“I  find that Mr Gray engaged in a strategy of equivocation and evasion which was not one which any reputable and honest solicitor could ever have adopted and the concept of “acceptable evasion” is clearly anathema to the standards of professional conduct to be expected of an officer of the court. I consider that the explanation for such a dishonest strategy cannot have been to cover up an honest mistake at the time of the September 2013 hearing. Rather, it was designed to prevent his own knowledge of the misdating error and the fact that he had sat through the September 2013 hearing knowing that the court was being misled ever coming out. Although this dishonest strategy in 2014 does not prove that he deliberately misled the court in 2013, it is strongly supportive of that conclusion.”

THE APPEAL TO THE COURT OF APPEAL

The solicitor involved, Mr Gray, appealed to the Court of Appeal against those findings of fact.  The Court of Appeal found that it may have a discretion to hear such an appeal but refused to exercise that discretion on the facts of this case

THE SOLICITOR WAS NOT IN ANY “SPECIAL POSITION”

The Court of Appeal held that there could not be a free-standing appeal against the findings of fact made. The Court of Appeal had no jurisdiction to entertain such an appeal.

i) Contrary to the position of the appellant in MA Holdings supra, Mr Gray was not a person who was substantively affected by Flaux J’s decision to set aside the freezing order or who had any substantive interest in it being set aside, such as to confer on him a right of appeal. Mr Gray had no personal, in the sense of financial or proprietary, interest in the freezing order remaining in place, or being set aside. He had no legal or equitable rights which were affected in any way by the decision. His only interest in the outcome of the set aside application was reputational. The fact that, pursuant to Flaux J’s order dated 31 March 2015, he was joined as a respondent to the proceedings “solely for the purposes of applying for permission to appeal” cannot per se confer on him “party” or “appellant” status. If McFarlane LJ was deciding at paragraph 41 of his judgment in Re W (a child) that, even in the absence of (a) a substantive interest in the outcome of an appeal and (b) an allegation that a court, in coming to a decision, had acted in breach of a witness’ article 8 private life rights or article 6 rights, a witness had sufficient status to appeal, I would, with respect, disagree with him.

ii) The decisions in Cie-Noga SA and Re M (Children) (Judge’s findings of fact: jurisdiction to appeal) supra clearly demonstrate that, normally, this court does not have jurisdiction to entertain an appeal against findings of fact which do not amount to a determination, order or judgment, unless they concern the issue upon which the determination of the whole case ultimately turns or are otherwise subject of a declaration within the order. Although this court (or indeed the first instance court) may have power to amend an order to include a declaration, since

“clearly, such a declaration carries significant import in relation to finality of proceedings which should render them the rare exception rather than the rule. They should not be incorporated without the most careful judicial consideration as to consequences and effect.”

see per Macur LJ in Re M (Children) (Judge’s findings of fact: jurisdiction to appeal) at para 21. In the present case there is no justification for this court to permit the amendment of the order to include such a declaration at the suit of a non-party, in circumstances where neither of the actual parties to the litigation have sought to appeal. Nor is Mr Gray seeking to challenge the judge’s decision in its result, viz. whether the freezing order should be set aside and costs orders made against the claimants and Gibson Dunn. His only interest is in challenging findings of fact and reasons which led to those orders.

iii) Nothing in Re W (a child) provides a route of appeal in respect of such matters. As Mr Kendrick submitted, article 8 provides procedural safeguards in terms of the right to a fair process: it does not provide a guarantee that a judge, having operated a fair process, will reach the correct conclusion on the substance of the case. The right to a fair process does not require that a litigant, let alone a witness, be afforded a right of appeal against a decision with which he disagrees on the substance^[6]. A court does not act unlawfully by getting the wrong answer on the merits. Such a conclusion is sensible: it is one thing to say that a witness whose professional reputation is at stake should not be criticised without warning and a fair opportunity to respond, but it would be quite another to allow a professional witness to appeal simply because he or she disagreed with a judge’s criticism of his or her evidence, professionalism or conduct.

iv) I reject Mr Gray’s argument that he stands in some sort of special position because he was not a mere witness or third party, but was called by Flaux J in his supervisory capacity over officers of the court and that the judge made “final determinations” against Mr Gray as part of an inquisitorial process that the judge set in train and conducted. That mischaracterises the nature of the proceedings and Mr Gray’s involvement as a witness. As Mr Kendrick submitted, the proceedings were, and were only, the hearing of an application by Mr Boreh for particular relief against the claimants and Gibson Dunn. There was no inquiry or exercise of disciplinary jurisdiction against Mr Gray and no judgment or order was made in the exercise of the Court’s supervisory jurisdiction, as is apparent from the face of the Order appealed against.

THE EXERCISE OF A DISCRETION IN RELATION TO PROCEDURAL APPEALS

The Court then considered whether they should exercise a discretion in relation to the “procedural” aspects of the hearing. It declined to exercise any discretion it may have.

Discretion

1. However, although for present purposes I proceed on the basis that, in the light of Re W (a child) and Mr Kendrick’s concession, there is jurisdiction in this court to grant permission to Mr Gray to appeal on the grounds that he was denied fair process which engaged his article 8 rights, I would refuse permission to appeal as a matter of discretion, both in relation to the procedural grounds 1 -3, and (if, contrary to my view, jurisdiction exists) in relation to the substantive grounds 4-12. My reasons for doing so are as follows.

2. First, I do not consider that Mr Gray has any real prospect of establishing on an appeal that the procedure adopted by the judge in relation to the determination of the allegations against him were “fundamentally” or otherwise unfair, in the respects alleged in his grounds of appeal. In other words, I do not consider that Mr Gray has any real prospect of establishing that Flaux J in fact conducted the hearing in such a way as to amount to an interference with his article 8 rights.

3. There is a complete air of unreality in Mr Gray’s contention that he did not know what claim he had to meet. First of all, as the partner having conduct of the case on behalf of the claimants, and as his numerous affidavits show, Mr Gray was himself closely involved at every stage of the application for a freezing order. This was not a case of a partner distancing himself from the minutiae of the day-to-day management of the litigation; on the contrary, he was the solicitor not only directing the strategy but also personally responsible for the production and presentation of the evidence and indeed, although he may dispute the extent of his involvement, in drafting an extradition request to the UAE authorities in Dubai for the extradition of Mr Boreh to Djibouti.

4. The allegations made by Mr Boreh against Mr Gray were clearly formulated in the fourth affidavit of Ms Jefferies, a solicitor in the firm of Byrne & Partners LLP, solicitors acting on behalf of Mr Boreh, dated 9 January 2015. That affidavit itself was served after Mr Gray, in his fourth and fifth affidavits dated respectively 11 November and 29 December 2014, in which he had attempted to explain his conduct in relation to his failure to draw to the court at the hearing in September 2013 (or indeed at any time prior to the further hearing on 13 November 2014) the fact that certain transcripts of intercepted telephone conversations had been mis-dated. Ms Jefferies’ fourth affidavit made clear that the allegations which Mr Gray had to face were:

i) that he had dishonestly concealed the fact that Mr Boreh’s conviction was unsafe because it was based on mis-dated transcripts and a false confession, including the allegation that Mr Gray had deliberately decided not to correct the judge’s understanding at the September 2013 hearing; and

ii) that, after the freezing order had been granted, he dishonestly stated, or sought to create the impression, that he had not known that the transcripts were misdated at the time of the application.

1. There was no indication in Mr Gray’s six and seventh affidavits served in response to Ms Jefferies’ affidavit that he was under any misapprehension as to the case which he was required to meet. In his sixth affidavit, for the first time, he set out a lengthy explanation for his conduct, by reference to a large quantity of previously unseen, and previously privileged, material. It was not surprising in those circumstances that Mr Boreh’s case against Mr Gray evolved to a certain extent in the light of that material. But I accept Mr Kendrick’s submission that, in the circumstances, Mr Gray was not entitled to be told in advance precisely what the lines of cross-examination against him would be, or how every point would be argued. The gravamen of the allegations against him and the type of arguments which were being deployed by Mr Boreh to set aside the freezing order, moreover, were clearly spelt out in Mr Boreh’s skeleton argument dated and served on 26 February 2015 shortly before the hearing began on 2 March 2015.

2. Although his counsel, in their speaking note responding to Mr Boreh’s skeleton argument, complained that Mr Boreh’s skeleton argument contained new allegations interweaved with the old, the reality was that such development as there was of Mr Boreh’s case, largely arose as a result of the disclosure of the new materials by Mr Gray and the detailed explanation of his conduct which he had given. It was perfectly clear what criticisms he faced and, unsurprisingly, despite the complaint and the skeleton argument, no application was made at any stage of the hearing by Mr Simpson on behalf of Mr Gray to adjourn the proceedings.

3. Nor am I impressed by the argument that Flaux J “made numerous findings of fact which were not pleaded or put to Mr Gray, in relation to which disclosure was not given, witnesses were not called and which Mr Gray had no adequate opportunity to meet”. It is apparent from the judge’s detailed and careful judgment that he was meticulously fair in his assessment of the evidence in relation to the alleged dishonesty of Mr Gray. It was legitimate for the judge to make findings of fact irrespective of whether they were points which had been relied upon by Mr Boreh as one of the grounds in his application. On analysis of the transcripts, it is clear that Mr Gray had every opportunity to deal in the course of his evidence with those aspects of the evidence in relation to which the judge made adverse findings against him, notwithstanding they were collateral matters which did not form the primary focus of Mr Boreh’s grounds for setting aside the freezing order. Even if the judge had been wrong, for example, to conclude that Mr Gray had no honest basis for saying that it was “widely known” that there had been an explosion on 3 March 2009, such a finding could not undermine the judge’s basic conclusions in relation to Mr Gray’s dishonesty, which justified the setting aside the freezing order.

4. Likewise, the argument that the judge reached conclusions adverse to Mr Gray in the absence of privileged documents and testimony from other witnesses, does not stand scrutiny. In his sixth affidavit, which, with the consent of the claimants, exhibited a large number of privileged documents “relevant to the issue of [Mr Gray’s] honesty” which had previously not been exhibited, there was no suggestion that other documents which might exonerate him had been omitted on privilege or other grounds. Nor is there any substance in the argument that evidence from other witnesses would have resulted in the judge reaching a different conclusion. Indeed, Mr Gray was offered the opportunity to apply for other witnesses to be called, but did not proceed with any application to that effect.

5. Mr Gray’s principal complaint as to the substance of the judge’s findings presented on the appeal before us was that, by parity of reasoning, in circumstances where the judge had not been prepared to find that the claimants’ leading counsel, Mr Qureshi QC, was dishonest, there was no basis for finding Mr Gray dishonest. Again I reject that argument. The judge was perfectly entitled to reach the conclusion that Mr Gray had behaved dishonestly, and that, as a result, the freezing order should be set aside, irrespective of any need to make any findings to similar, or different, effect in relation to Mr Qureshi, whose knowledge and state in mind had not been investigated. The judge was entitled to conclude that the latter’s state of mind had not necessarily been the same as the former’s.

6. Contrary to Mr Gray’s submissions, this is a very different case from the position in Re W (a child). This is not a case where it is obvious, or, in my view even remotely discernible, from the face of Flaux J’s judgment, that he conducted the hearing in a procedurally unfair manner. Even if more detailed argument on an appeal might, contrary to my view, persuade this court that such had indeed been the case, there is no possibility of Flaux J’s judgment being redacted in such a way as to excise references to Mr Gray’s dishonesty or to “rewrite” the judgment, so as to base it on a mistaken, but honest, misleading of the court.

7. Second, even if, contrary to my view, it were realistically arguable that Flaux J had conducted the hearing of the application unfairly so far as Mr Gray were concerned, so as to interfere with his article 8 rights, as a matter of discretion it would, in my judgment, be wholly inappropriate in the circumstances of this case to afford Mr Gray, who was not a party to the proceedings, a remedy by way of an appeal to this court to challenge the decision reached by Flaux J, after a full evidentiary hearing, that Mr Gray had been dishonest. Not only has no actual party to the proceedings any interest whatsoever in such an issue being litigated, since neither the claimants nor Gibson Dunn have sought to appeal Flaux J’s interlocutory decision that the freezing order should be set aside, but, most importantly, the trial of the main action itself has concluded with the claimants’ claim against Mr Boreh being dismissed. The litigation as between the claimants and Mr Boreh is over, the claimants having failed to obtain permission to appeal.

8. In such circumstances, the provision to Mr Gray of a right of appeal to this court, potentially with a consequent remission to the Commercial Court for a re- hearing of the dishonesty issue, as a means of remedying that interference, would in my judgment be contrary to the rights of the actual parties to those proceedings pursuant to article 6.1 of the Convention and common law, to have their civil disputes determined within a reasonable time, in a fair manner and in accordance with the law, as laid down in the relevant rules of court. Article 8 expressly permits interference by a public authority with an individual’s exercise of his article 8 rights “in accordance with the law …… or for the protection of the rights and freedoms of others”. That means that this court, in considering whether any remedy of an appeal should be afforded to Mr Gray (on the assumption that the hearing before Flaux J indeed involved an interference with his article 8 rights), has to balance the respective rights of Mr Gray on the one hand and those of the actual parties to the litigation on the other. In my judgment, in this case, any such balancing exercise comes down squarely in favour of the latter. They are entitled to finality in their litigation, within a reasonable time, and not to be subjected to further appeals at the suit of a non-party, with the consequent risk as to costs, merely on the basis of Mr Gray’s contention that the process was unfair to him as a witness and that the judge came to the wrong conclusion on the totality of the evidence. Even if they were not minded to participate in any such appeal, the court would need to have regard to the consequences, so far as they were concerned, of upsetting any finding of fact. In any event it would be highly unsatisfactory for there to be a one-sided appeal.

9. In reaching this conclusion, I take into account the fact that Mr Gray’s professional conduct is the subject of disciplinary proceedings before the Solicitors Disciplinary Tribunal, which currently stand adjourned pending this appeal. He will have an opportunity to vindicate his professional reputation at that hearing. He will have a proper opportunity to challenge what he claims are the wrong and unfair evidential conclusions reached by Flaux J as to his knowledge and lack of honesty. Rule 15(4) of the Solicitors (Disciplinary Proceedings) Rules (2007 No. 3588) provides:

“(4) The judgment of any civil court in any jurisdiction may be proved by producing a certified copy of the judgment and the findings of fact upon which that judgment was based shall be admissible as proof but not conclusive proof of those facts.”

Thus it will be open to Mr Gray to adduce evidence before the Solicitors Disciplinary Tribunal to challenge the conclusions reached by Flaux J. It will be open to him to contend that the process adopted by Flaux J was unfair to him because it did not provide him with a proper opportunity to meet the allegations against him or to produce the entirety of the relevant evidence. None of the views expressed by this court as to those matters will be binding on the Solicitors Disciplinary Tribunal. The Tribunal, as Mr Simpson submitted, will have the power to call for privileged materials. In my judgment that is the appropriate forum for Mr Gray to defend his professional reputation; a non-party appeal to this court is not an appropriate forum.

Disposition

1. Accordingly, in my judgment, even if this court does have jurisdiction to entertain an appeal by Mr Gray in relation to the procedural and/or substantive grounds set out in his notice of appeal, I would refuse permission to appeal.

2. Finally, although every case depends on its own facts, I express my concern that to permit a non-party witness in a commercial case of this type to exercise an independent right of appeal, in which he is free to challenge adverse factual findings made against him by a first instance judge, merely on the grounds that such findings have reputational consequences for him, has the potential to lead to highly undesirable satellite litigation. That in my judgment would be likely to waste court resources contrary to the interests of other litigants and to bring the administration of justice into disrepute.