COURT CAN COMPEL SOLICITOR TO ATTEND COURT TO EXPLAIN THEMSELVES

The decision of Mr Justice Saini in  Hunt Annolight Ltd & Ors [2020] EWHC 3744 (QB) has just arrived on BAILLI.  It was decided that the court does have the power to order a solicitor to attend court to be cross-examined on a witness statement. Further it was a proper exercise of the court’s discretion for this to happen.  The case is unusual in that the appellant solicitor was arguing, on appeal, a totally different position to that which had been argued before the Circuit Judge.

NB the Court of Appeal has given permission to the solicitor to appeal this decision on the grounds that this type of order is relatively unusual.  The appeal raises an important point of principle and practice and has a real prospect of success.

 

“… this case has the odd feature that the judge’s exercise of discretion is being impugned on the basis of arguments which were not only not put to the judge, but which are in fact diametrically opposed to the arguments put to him.”

THE CASE

The claimant brought an action for industrial deafness. During the course of the proceedings replies were sent to Part 18 questions posed by the Defendant.   Shortly before the trial was due to start the claimant’s counsel informed the judge that the claimant had not, in fact, signed the Part 18 response.  Further part of the replies was clearly incorrect.

The claimant discontinued the case. The defendant made an oral application for QOCS to be disapplied and for a wasted costs order against the claimant’s solicitors.

 

THE ORDERS THAT THE JUDGE MADE

  1. The judge made the following orders. First, that the Claimant do pay the Defendants’ costs of the action.  Second, that the determination of whether this costs order should be enforceable against the Claimant and/or should be paid by the Firm would be the subject of a hearing before His Honour Judge Godsmark QC or another judge.  Third, the judge directed that the formal applications for costs to be enforceable against the Claimant or the Firm were to be made by 10 January 2020.
  1. As regards the response to any such applications, the judge directed that any witness statement from the Firm had to be made by the supervising partner with the conduct of the claim.  Appreciating that Mr Hunt might find himself without legal representation at this point, the judge directed that Mr Hunt be at liberty to provide a witness statement to the Court in the form of a letter to the Court signed by him with a statement of truth.

Some of the defendants subsequently made applications that QOCS be disapplied on the grounds that the claimant was fundamentally dishonest.  At a subsequent hearing the judge directed that the claimant’s solicitor attend court to give evidence when the applications were to be heard.

THE CHANGE OF POSITION

Those representing the solicitor appealed the order that the solicitor should attend court. As the judge noted this represented a fundamental change of position by the solicitor.
  1. It is common ground before me that no submission was made to the judge that he did not have power to require the attendance of Mr Sarwar at the hearing of the Defendants’ applications.  It is also common ground that as opposed to submitting to the judge that he ought to exercise his discretion not to direct such attendance, the effect of what was being said by Counsel for the firm was that Mr Sarwar’s attendance would probably be required in all the circumstances.
  1. The basis for Counsel’s position seems to have been that that attendance would be required (not only because an application for wasted costs had been made against Mr Sarwar’s firm) but also because Mr Sarwar was potentially an important witness on the trial of the issue of fundamental dishonesty.
  1. That is how matters stood at that point in time and it is rather surprising that it is the order that emerged from that hearing which is the subject of this appeal.
  1. For completeness, I should record that before the CMC, Mr Sarwar had provided a witness statement which explained the Firm’s position in relation to the Part 18 responses concerning the directorship. In that regard (although he was at that time constrained by privilege) the essence of Mr Sarwar’s evidence was that the inaccurate Part 18 response (in relation to directorship of the Third Defendant) was in fact signed by Mr Hunt.  Notably, however, Mr Sarwar did not deal in any way with the substantial other, which was the confused and contradictory position put forward on behalf of Mr Hunt in relation to the hearing protection (or lack thereof) provided by the Sixth Defendant.
  1. In accordance with the judge’s order of 12 December 2019, Mr Hunt for his own part, and acting in person, submitted a letter by way of witness statement dated 27 May 2020.  I do not need to go into the detail of that letter but it does seem to me that in that letter Mr Hunt is effectively waiving privilege in relation to his advice from the Firm. I described what Mr Hunt is there doing to Walker Prestons as effectively “throwing them under the bus”. Counsel before me did not dissent from the description. He clearly blames the Firm for the situation which has arisen.

THE COURT HAS POWER TO ORDER A LEGAL REPRESENTATIVE TO ATTEND

The judge rejected an argument that the court did not have power to compel a legal representative to attend.

  1. The first argument made by counsel for the firm is that there is no power to require the attendance of a legal representative and reliance is placed upon the terms of CPR 46.8(2), which provides:
“The Court will give the legal representative a reasonable opportunity to make written submissions or, if the legal representative prefers, to attend a hearing before it makes such an order.”
  1. The essential argument made on behalf of the Firm is that this is a complete code regulating the procedure for dealing with wasted costs applications under section 51 of the 1981 Act, and that the legal representative has an unfettered choice either to make written submissions or to attend the hearing and that the Court has no additional power.
  2. In support of this submission as to jurisdiction Counsel for the Firm relied strongly upon the judgment of Bingham LJ in the case Ridehalgh v Horsefield [1994] Ch 205.  That was a case in which the Court of Appeal gave guidance about the proper approach to applications for wasted costs orders. Reliance was placed in particular upon the statements of principle at pages 239 to 240 in that judgment.
  1. Relying upon a combination of what was there said and Rule CPR 46.8.2, the primary submission of Counsel for the Firm was that the judge simply had no power or jurisdiction to require Mr Sarwar to attend.
  1. This very issue was the subject of a detailed decision of Underhill J sitting in the Employment Appeal Tribunal in the case of Godfrey Morgan Solicitors Ltd v Cobalt Systems Ltd, unreported 31 August 2011.
  1. In that case a submission was made to the judge that it would never be appropriate for there to be cross-examination of a legal representative in respect of a wasted costs application.  Between paragraphs 24 and 28, Underhill J analysed a number of cases, including Ridehalgh, and came to the conclusion that there was no rule or principle which deprived the Court of the ability to require a legal representative to attend for cross-examination.  He underlined that in most cases cross-examination of such a representative would be inappropriate or disproportionate but held that as a matter of jurisdiction a Court could permit cross-examination of a legal representative. 
  1. Although I am not bound by the Godfrey Morgan case, in my respectful view the reasoning of Underhill J is convincing and correct. I propose to follow that decision. Specifically, the passages which are relied upon before me from the Ridehalgh case do not, as Underhill J explained, erect any jurisdictional bar against the cross-examination of a legal representative.
  1. There is however an additional point which I raised with Counsel during argument. Under CPR 32.7, the Court has the power to require anyone who gives evidence in writing (other than at trial) to attend for cross-examination. This is often overlooked and is an important provision for those who choose to give interlocutory witness statements to bear in mind.
  1. In this case, there is nothing to exclude the application of that power to Mr Sarwar who chose to provide his witness statement. CPR 32.7 would have provided the judge with jurisdiction (in addition to the principles in the Godfrey case), had the point been raised. I reject the submission that the wasted costs regime in CPR 46.8 is a complete procedural code which would exclude the Court’s CPR 32.7 power, or the general power identified by Underhill J. When a complete code is intended the rule drafters they had made that clear: see CPR 36.1, for example.
  1. As the notes at para. 32.71. of the White Book 2020 Vol. 1 make clear, the Court’s power to require attendance for such cross-examination is fact and context dependent. Attendance of a solicitor under this rule can be ordered and has indeed occurred. See for example the case Republic of Djibouti v Boreh [2015] EWHC 769 (Comm); [2015] 2 All ER (Comm) 669. It is also sometimes the case that solicitors are required to give evidence and be cross-examined on their statements in disclosure disputes.

THE EXERCISE OF THE COURT’S DISCRETION

The judge then considered the exercise of the court’s discretion.

  1. As I indicated at the outset of this judgment this case has the odd feature that the judge’s exercise of discretion is being impugned on the basis of arguments which were not only not put to the judge, but which are in fact diametrically opposed to the arguments put to him. As explained by Lloyd LJ in the case of Allen v Bloomsbury Publishing Ltd [2001] EWCA Civ 943, it is inappropriate to criticise the exercise of discretion by a judge on the basis that he failed to consider matters which were never raised before him. As will already be clear, the position of the Firm is much more unattractive than even this, because the Firm was positively submitting Mr Sarwar’s attendance was potentially required. 
  1. At the risk of stating the obvious, it is impossible to review the discretionary decision of the judge because nobody was saying the discretion should be not exercised to require Mr Sarwar’s attendance, so the judge did not have to explain his decision. Therefore the normal approach on appeal cannot be applied. 
  1. Serious issues arise as to whether this (and indeed the appeal on jurisdiction) should be entertained at all. I refer to the White Book, Vol.1, para. 52.21.1.1 and Singh v Dass [2019] EWCA Civ 360. It is arguably abusive to mount an appeal on the present circumstances.
  1. However, being generous to the Firm, I have considered the matter essentially de novo, based on the facts which have been argued before me. As I shall explain, I have no doubt that it is a proper exercise of discretion to require Mr Sarwar’s attendance.
  1. A number of matters are particularly relevant.  First, the Firm is no longer acting for Mr Hunt.  Second, it appears to be the case that privilege has been waived and there is no restriction on the Firm giving a full account of the position between itself and Mr Hunt. Third, it is clear to me on even a brief perusal of the witness statements that there are radically different accounts given by Mr Sarwar (the Firm) and Mr Hunt as to the facts which are central to certain of the issues to be determined by the judge on the hearing of the Defendants’ applications. It may well be that it is rare to require the attendance of a representative to be cross-examined on an application of this type but in my judgment it is difficult to see how these issues could be resolved in a fair and proportionate way without oral evidence from Mr Sarwar. Fourth, I am confident that the nature of these issues is that they can be managed in accordance with the Overriding Objective, so as to avoid the hearing of the applications becoming a substantial piece of satellite litigation. That is one of the concerns which motivated Bingham LJ in his cautionary observations in the Ridgehalgh case.
  1. Having allowed the Firm to make new and fresh submissions to me and have a “second bite at the cherry”, this is overwhelmingly a case where Mr Sarwar should attend for cross-examination.  The Judge’s decision was clearly correct