COVID REPEATS 46: IF YOU CAN’T BE BOTHERED TO CONDUCT YOUR CLIENT’S LITIGATION – THEN JUST MAKE IT ALL UP

Of all the many cases that have featured on this blog the judgment in  Islamic Investments Company of the Gulf (Bahamas) Ltd -v- Symphony Gems NV & others [2014] EWHC 377 3777 (Comm) is the one that I found hardest to be believe was true when I first read it.  A solicitor simply “made up” ongoing litigation for a client.   This included the fabrication of BAILLI judgments, telephone conferences with “fake” leading counsel and the senior partner in addition to reporting back on fictitious hearings and writing “judgments” of the courts on hearings that never, in fact, took place.

 

THE (ALMOST) UNBELIEVABLE OPENING PARAGRAPHS

Mr Justice Hamblen:

Introduction

  1. The facts giving rise to the present application are so extraordinary that they could have come from one of A.P.Herbert’s “Misleading Cases”.
  2. As with A.P. Herbert’s “Uncommon Law”, this case involves the false document literary technique – the creation of a sense of authenticity through the invention of documents which appear to be factual.
  3. The “author” in this case was Mr Andrew Benson, then a partner in Byrne & Partners LLP who was purporting to act for the Second Defendant, Rajesh Mehta (“RM”).
  4. From the end of October 2010 until December 2013 he conducted fictitious litigation for RM. That litigation involved fictitious hearings before the Commercial Court and the Court of Appeal; purported judgments of those courts; purported sealed court orders; a purported hearing transcript; purported skeleton arguments; purported correspondence with court officials and the Claimant’s solicitors, Norton Rose; the fictitious instruction and engagement of various counsel, and telephone conferences involving the impersonation of his senior partner and of leading counsel. None of this reflected reality. Throughout that period there was in fact no contact with Norton Rose or the court.
  5. The deception was finally discovered in December 2013 when questions were asked about a transcript of a purported hearing before Popplewell J. and his real clerk was contacted directly.
  6. Mr Benson has been dismissed from Byrne & Partners and is under investigation by the Metropolitan Police and the Solicitors Regulation Authority (“SRA”).

THE CONSEQUENCES FOR THE CLIENT

Mr Benson had been acting for Mr Mehta in real litigation.  Numerous adverse orders had been made against Mr Mehta in the course of that litigation, including a committal order.  He sought the setting aside of all adverse orders on the grounds that Mr Benson had been acting fraudulently and against his interests.  He argued that there was clear evidence that Mr Benson was misconducting the litigation deliberately. Mr Mehta sought the setting aside of the orders made pursuant to the court’s broad discretionary powers under CPR r.3.1(7).

THE RESULT

In a detailed judgment of 142 paragraphs Mr Justice Hamblen set out his reasons for refusing to set aside the orders made with the exception of the activated suspended committal order.

In relation to most of the adverse orders the judge was not satisfied that it had been shown that any of the alleged misconduct by Mr Benson impacted upon the orders made.

However in relation to the committal order there were a number of justifiable complaints.

  1. The evidence presently before the court justifies the criticisms made. These include a failure to prepare evidence for the hearing as instructed and advised by counsel; a failure to apply to the Court for an adjournment of the hearing on the grounds of RM’s serious ill health; misrepresenting the position in relation to the fixing of the hearing; giving the false impression on 24 September 2010 that an adjournment had been sought but refused by the Court; delaying in providing important evidence from the Claimant to be considered by the Court at that hearing; failing to ensure that there was any evidence in response; failing to instruct counsel to attend the hearing; wrongly informing the Court at the hearing that he was appearing without instructions; failing to follow those instructions by seeking an adjournment and, if that was refused, making positive submissions as to why no committal order should be made.
  2. These criticisms involve serious misconduct by Mr Benson in the preparation for and the conduct of this very important hearing. Notwithstanding David Steel J.’s understandable scepticism towards RM, his evidence and his last minute applications, I am satisfied that these failures significantly impacted on the order made and that an order would not have been made in the same terms had the Court been given a full and accurate picture of the position.

The judge concluded that there was considerable substance to some of the points made by the defendant. However this was an extraordinary case.

 

  1. In an ordinary case there would be strong grounds for imposing conditions on the exercise of any discretion in favour of RM, as indeed has been done in the past. However, by definition this case is “out of the ordinary”. Indeed it is at the extreme limits of what is “out of the ordinary”. It is a case which raises serious concerns about the circumstances in which the ACO was made and in relation to which it has been shown that there is good reason to believe that RM’s own solicitor, a man who has been shown to be dishonest, was acting against his interests. It is axiomatic that justice must be both done and seen to be done. In the circumstances of the present case in my judgment that requires the setting aside of the ACO unconditionally.

SOME EXAMPLES OF THE FICTITIOUS LITIGATION

The judge gave some examples.  The client was abroad and so was not meeting the solicitor face to face. Numerous documents were simply made up. Someone impersonated a QC in order to have a conference with the client.
    1. On 10 February 2012 Mr Benson forwarded to Mr Sanghvi what purported to be a judgment from the Court of Appeal (Moore-Bick and Richards LJJ, and Sir David Latham) in relation to the hearing of the Claimant’s appeal against Teare J.’s order. The “judgment” is in Westlaw format, has the citation number [2012] EWCA Civ 409 and records that Mr Edward Fitzgerald QC and Mr James Hines had appeared for RM and Mr Anthony Trace QC and Mr Andrew Ayres for the Claimant appellant. It runs to 6 pages and comprises 37 plausibly reasoned paragraphs.
    2. At paragraph 23 of the “judgment” the court explained the basis of the appeal:
“The Respondent sought and obtained an order that the Committal Order and the Bench warrants be considered afresh on the basis of the apparent bias of the Trial Judge Mr Justice David Steel. The context of this application arose because the parties had agreed in August 2011 to set aside the judgment with a view to obtaining ‘fresh’ compliance. Ultimately although an order was made by the parties by consent the Court using its inherent jurisdiction Ordered the matter be tried given the implicit criticisms of a Judge. That is the matter that went before Mr Justice Teare and the subject of this appeal.”
    1. The judgment concluded that Teare J. had not considered all of the relevant matters in reaching his conclusion, and that his order would therefore be set aside and the matter would have to be remitted to be heard again:
“It is essential that the parties understand that I am not finding that there is no appearance of bias but merely that the judge erred in finding that there was on the basis that he did…Accordingly the parties are invited to provide proposals as regards the future conduct of the matter on the basis that it ought properly be referred back to the Commercial Court. Having said this it will be clear from what I have said above that the Committal Order and Bench Warrant remain in full force unless and until further application is made on the basis of complete information to a Judge of the Commercial Court.” (paragraphs 33 to 35).
  1. Hence by this point Mr Benson had constructed a fiction in which RM was effectively back to square one. He purported to have sent letters to Norton Rose to explore the way forward on 10 and 20 February 2012. On 17 February 2012 he forwarded a copy of the Court of Appeal’s order in unsealed form which he claimed had been provided by the court.
  2. On 21 March 2012 Mr Benson told RM that Gloster J. had set aside David Steel J.’s orders of 4 October 2010. It appears from an email sent by RM the same day that he was told that this was on the grounds of RM’s health at the time of the 4 October 2010 hearing. RM explained that he still wished to consider taking further steps in relation the bias issue, including taking the matter to the ECHR in Strasbourg: “I have suffered separation from my family for sixteen months & counting on a civil matter & there is no remedy for the anguish that we are going through & my right to family life is completely violated. I want to see if there is something we can do about this.”
  3. On 26 March 2012 Mr Benson emailed what purported to be the sealed order of Gloster J.
  4. He then informed RM that the Claimant had lodged an appeal against the order of Gloster J. On 25 May 2012 he forwarded a purported sealed order of the Court of Appeal dated 18 May 2012 upholding Gloster J.’s order, but providing that the matter be brought before the court to consider whether conditions should be applied. Mr Benson then forwarded what purported to be a further sealed order from the Court of Appeal, dated 25 May 2012, applying conditions “pursuant to the Court’s previous Order (dated 18 May 2012)” that RM should pay USD 3,000,000 into court on or before 6 July 2012; should return to the jurisdiction pending the redetermination of his compliance; should surrender his passport; and should serve the evidence in relation to his compliance by 29 June 2012.
  5. Shortly thereafter, Mr Benson sent to RM copies of a letter purportedly sent to the UK Border Agency enclosing the Court of Appeal’s order and seeking confirmation that the UK Border Agency’s records had been suitably updated.
  6. Thereafter considerable steps were taken to seek to demonstrate RM’s compliance. This included visits by Mr Benson and Mr Sanghvi to see RM in Brussels and Antwerp on 1 June and 18 June 2012 respectively to take instructions from him. Various drafts of an affidavit were produced and RM was led to believe that this had, in its final form, been lodged with the Court.
  7. Mr Benson then told RM that the matter was being listed before Dobbs J. and that Mr Fitzgerald QC remained instructed. He subsequently informed RM that a hearing had been held before Dobbs J., and that judgment was awaited. On 6 August 2012 he forwarded an email from the Commercial Court explaining that while Dobbs J. had intended to hand down her judgment on 6 August she was still working on her judgment (Dobbs J. was not a Commercial Court Judge).
  8. Mr Benson forwarded by email on 13 September 2012 what purported to be a judgment of Dobbs J. in relation to applications made concerning the committal order and the bench warrant. The “judgment” was seven pages long, had a neutral citation number and was in Approved Judgment form. The “judgment” stated that RM’s further affidavit still did not amount to compliance, refused his applications, and gave directions for a further affidavit to be served, and for the matter to be brought back before her on 3 October 2012.
  9. Work immediately commenced on producing the further affidavit apparently ordered and to deal with the points raised in Dobbs J.’s “judgment”.
  10. Mr Benson then informed RM that, in the event, the hearing directed for 3 October 2012 had been vacated. On 11 October 2012 he circulated submissions he said had been served by the Claimant and led RM to believe that a hearing had taken place with judgment reserved.
  11. No judgment was handed down, and Mr Benson then reported that an appearance by counsel had been made before Goldring LJ. as Senior Presiding Judge to complain about the delay in judgment being handed down, and that he had issued a ruling, for the attention of Dobbs J. “to reaffirm the need for swift and transparent processes.”
  12. It appears that in the light of this “ruling”, Mr Benson told RM that Dobbs J. had made an order on 6 November 2012 (but not delivered a judgment) requiring RM to disclose certain categories of documents by 7 November 2012. A Ninth Affidavit of RM was then produced dealing with the questions raised, which RM believed had been filed and served.
  13. Mr Benson told RM that a hearing had taken place before Dobbs J. on 19 November 2012, at which he had again been represented by Mr Fitzgerald QC. On 21 November 2012 he emailed to RM wording of a further order which, he claimed, Mr Fitzgerald QC had agreed. The terms of the order required RM to provide by 24 November 2012 information and documents relating to the funding of his day to day living expenses, accommodation, and travel arrangements. The matter was, apparently, to be relisted on 27 November 2012.
  14. A Tenth Affidavit of RM was then prepared and, RM believed, lodged and served, dealing with those questions.
  15. On 3 December 2012 Mr Benson forwarded to RM an email purportedly from the clerk to Dobbs J. explaining that her ruling would be circulated that day, and that she had “updated the Presiding Judge as to her progress and he has requested that he be kept informed updated [sic] as regards progress later today”.
  16. Nothing was apparently received from Dobbs J., and on 28 December 2012 Mr Benson sent to RM a copy of an “appeal submission” he claimed Mr Fitzgerald QC had drafted to be placed before the Court of Appeal in relation to the delay in the handing down of Dobbs J.s’ decision.
  17. Mr Benson then provided RM with a copy of an order apparently made by the Court of Appeal on 10 January 2013 providing that certain consequences would follow if Dobbs J. did not hand down her judgment before 18 January 2013.
  18. On 29 January 2013 Mr Benson told RM that there had been a hearing before the Court of Appeal on that day at which the setting aside of the committal order and the direction for an expedited hearing before a judge other than Dobbs J. had been debated. This led to consideration of the position in emails between Mr Benson, Mr Sanghvi and RM prior to a hearing before the Court of Appeal Mr Benson had told them would take place on 4 February 2013.
  19. During this period a telephone conference took place between Mr Benson, RM, Mr Sanghvi and someone impersonating Mr Fitzgerald QC.
  20. Subsequently (although not until 28 March 2013) Mr Benson provided RM with a copy of the sealed order he said had been made by the Court of Appeal on 30 January 2013. The terms of the order included that Dobbs J.s’ determination should be set aside and the matter remitted to the Commercial Court, and that RM’s application to re-enter the jurisdiction should be permitted subject to certain conditions, including that he lodge security of USD 1.5 million to the Supreme Court Costs Office, and that he surrender his passport within 24 hours of entry into the jurisdiction.
  21. In late February 2013 Mr Benson led RM and Mr Sanghvi to believe that the matter was before Popplewell J. and that an order was being drawn up providing that unless the Claimant filed and served a witness statement by 15 March 2013 “detailing any and all documents which it is alleged the 2nd Defendant has failed to disclose pursuant to the Orders of Master Miller dated 16 January 2007 and Mr Justice Steel dated 6 October 2009″ it would be ordered that RM had complied with the said orders. A purportedly sealed order of Popplewell J. to this effect was then forwarded to RM by Mr Benson.
  22. On 15 March 2013 Mr Benson forwarded a witness statement purportedly made by Mr Walton of Norton Rose dated the same day, as provided for in Popplewell J.’s order, explaining why the Claimant contended that RM had not complied with his disclosure obligations.
  23. Work then commenced on an affidavit from RM in reply to the statement he believed had been served on behalf of the Claimant and various drafts were produced. Mr Benson was instructed to serve the evidence in affidavit form on 22 March 2013.
  24. Mr Benson then led RM to believe that there had been a hearing before Popplewell J. on about 11 April 2013, leading to an order requiring RM to give further affidavit evidence, the draft terms of which Mr Benson communicated on 12 April 2013.
  25. On 25 April 2013 Mr Benson forwarded to RM an email purportedly from Mr Walton of Norton Rose requesting a change to the timetable ordered by Popplewell J. He then claimed to have spoken to Mr Fitzgerald QC about it who advised that RM should not serve his own evidence until the following week.
  26. The affidavit which RM believed he had been ordered to provide by Popplewell J. was then finalised on 1 May 2013.
  27. RM was led to believe that a hearing then took place before Popplewell J. on 8 May 2013, with judgment reserved. This was, RM believed, the hearing at which the affidavits he had sworn in the period since October 2010 would be considered in order to determine whether he had complied with his disclosure obligations under Master Miller’s 16 January 2007 order. Subsequent to that supposed hearing, a further telephone conference was held with someone impersonating Mr Fitzgerald QC.
  28. On 15 May 2013 Mr Benson forwarded an email purporting to come from the clerk to Popplewell J. requesting his and Mr Walton’s attendance in chambers to assist him with documentation “to ensure his notes are reconciled to the specific documents referred to and that his judgment deals with all the relevant points”.
  29. On 21 May 2013 Mr Benson forwarded another email purportedly from Popplewell J.’s clerk saying that judgment would be handed down at 1630 that day. He later reported back to RM that Popplewell J. had found RM in contempt and had handed down a bench warrant. Orders purportedly sealed and signed by Popplewell J. were forwarded on 5 June 2013.
  30. RM instructed Mr Benson to lodge an appeal against the orders of Popplewell J., and on 16 July 2013 Mr Benson forwarded a draft Court of Appeal skeleton argument which he claimed had been drafted by Mr Fitzgerald QC.
  31. On 16 July 2013 Mr Benson told Mr Sanghvi that the hearing before the Court of Appeal was due to be that Thursday.
  32. On 28 August 2013 Mr Benson circulated by email what purported to be a copy of Popplewell J.’s judgment of 28 May 2013. This appeared to have been taken from Westlaw, had a neutral citation number and ran to five pages.
  33. On 30 September 2013 Mr Benson emailed to RM and Mr Sanghvi a copy of a sealed “order” of the Court of Appeal upholding Popplewell J.’s order of 28 May 2013, and a copy of what purported to be the judgment of the Court of Appeal (Jackson, Arden LJJ and Sir Scott Baker). This was again in Westlaw format, had a neutral citation number and ran to four pages.
  34. A further witness statement on behalf of RM was then drafted and forwarded to Mr Benson on 28 October 2013.
  35. In early November 2013 Mr Sanghvi, at the request of RM’s parents, chased Mr Benson for a transcript of the hearing before Popplewell J. This was not forthcoming, and RM chased again on 20 and 28 November 2013. On 2 December 2013 RM instructed Mr Benson to provide Mr Sanghvi with the dates of the hearing so he could chase the transcribers. He chased him again on 3 December 2013: “My parents have been extremely upset that it’s been three months that we have not moved forward due to the fact that we are waiting for transcripts. In the light of this it’s best I withdraw my instructions to your firm as it’s causing too much friction as well as delay in my matters.”. Mr Sanghvi chased Mr Benson to similar effect on 4 December 2013.
  36. On 9 December 2013 Mr Benson finally sent through what purported to be a transcript of the hearing before Popplewell J. on 28 May 2013. He promised to forward the Court of Appeal transcript subsequently, but this did not ever materialise. Mr Sanghvi raised with Mr Benson a number of anomalies in relation to the transcript.
  37. Nothing further was heard from Mr Benson after 9 December 2013.
  38. By now, RM and Mr Sanghvi had grown suspicious of what they have been told by Mr Benson, and in particular the delay in providing the transcripts of the hearings before Popplewell J. and the Court of Appeal. From 9 December 2013 Mr Sanghvi’s firm started to make its own enquiries directly with the Commercial Court and Court of Appeal. It was in the course of these investigations that the Commercial Court and Court of Appeal confirmed that the various hearings, orders, judgments etc. since the 4 October 2010 hearing had been fabricated by Mr Benson.
  39. Mr Sanghvi’s firm also made enquiries of various counsel said to have been instructed since October 2010. The clerks to Mr Fitzgerald QC, Mr Owen QC and Lord MacDonald QC all confirmed that they had never been instructed on RM’s matter.
  40. On 20 December 2013 Mr Sanghvi contacted the Police, and on 9 January 2014 he contacted the SRA to explain what had been discovered about Mr Benson’s conduct.
  41. The deception practised by Mr Benson over a period of more than 3 years, as summarised above, is rightly described as breathtaking. Until the Police and the SRA have concluded their investigations much remains unclear, including his motives. What is clear, however, is that his actions will have had a significant effect on RM (and his family) who has been strung along for more than 3 years in attempts to challenge the ACO and apparent subsequent court orders and in efforts to demonstrate that he has complied with the order of Master Miller of 17 January 2007. Throughout this time RM has been effectively been prevented from entering this jurisdiction causing obvious distress to himself, his partner and his children (who live in the UK).
  42. The motives for Mr Benson’s actions are presently unclear. The only payment made on behalf of RM during this period is the payment of £25,000 made to Byrne & Partners pursuant to the supposed consent order dated 4 July 2011. This has now been returned. None of the other payments called for in purported court orders were made. There is some evidence that other payments may have been made to Byrne & Partners but, if so, not by or on behalf of RM. There is also some evidence of a bitter family feud and of parties who might have an interest in ensuring that RM failed in all aspects of the English court litigation. However, at present this is all speculation. Matters will no doubt become clearer as a result of the Metropolitan Police and SRA investigations.”

The subsequent SRA proceedings, where the fabrications were admitted, are available here.