England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(MR JUSTICE JACOB)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 20 December 2001

1. LORD JUSTICE CHADWICK:This is an adjourned application for permission to appeal against an order made by Jacob J on 24 July 2001 in proceedings between Seer Technologies Incorporated (now known as Level 8 Technologies Inc) and Mr Saadi Abbas.
2. The proceedings have a long history. It is unnecessary to describe them in detail. It is enough to say that the claimant ("Seer") commenced proceedings against Mr Abbas in 1997 alleging that he was in breach of contractual obligations and had misused information relating to an invention. On the basis of those allegations it obtained a freezing order and dismissed him from its employment. As the usual condition for the freezing order, it gave cross-undertakings as to damages in the event that the court should find that the orders were wrongly made and that Mr Abbas had suffered damage as a result.
3. In due course the court found that those orders should never have been made. The Court directed an inquiry as to the loss which Mr Abbas had suffered as a result. There has never been any doubt that Mr Abbas has a claim for damages against Seer on the basis that the freezing order should not have been obtained and that he was wrongly dismissed. He also claims lost royalties and damages in respect of sales said to have been made by Seer of a financial model which he devised.
4. The present phase of the proceedings concerns the claim made by Mr Abbas the undertaking as to damages. It is a claim made in the inquiry as to damages suffered as a result of the freezing order.
5. In the course of that stage of the proceedings, Jacob J made an order on 8 May 2001 requiring Mr Abbas to produce documents and to provide witness statements. The judge made that order after a history, as he saw it, of a failure to make the discovery and to provide the witness statements necessary for the progress of Mr Abbas' claim. The claim had progressed in such an unsatisfactory manner that a number of fixed hearing dates had already been lost; but by May 2001 there was in prospect a hearing in November. It was in those circumstances that Seer sought and obtained an order that, unless there was compliance by 29 May 2001 with the order that was made on 8 May 2001, Mr Abbas should be debarred from pursuing his claims in relation to his dismissal from employment and all of his claims under the cross-undertaking.
6. The matter came back before the judge on 23 July 2001 on an application by Seer to give effect to that debarring order. Seer alleged that Mr Abbas had failed to comply with the order of 8 May 2001; and that the position had been reached in which he could no longer be allowed to continue with his claim because it was proving impossible to bring that claim to trial.
7. On 24 July 2001 Jacob J acceded to that application. He made an order, under paragraph (iii), that:

"Pursuant to the orders herein dated 8 May 2001 all causes of action advanced by Mr Abbas in his counterclaims and in the enquiry as to damages ordered on 10 July 1998 be struck out and dismissed save that Mr Abbas should have judgment pursuant to admissions for various sums making a total of £135,350.39."

8. It is against that order of 24 July 2001 that Mr Abbas seeks to appeal.
9. The grounds on which he seeks to appeal are set out in section 7 of the appellant's notice filed on 7 August 2001. He says:

"My claim which was dismissed was an old claim that had already been accepted as a valid claim by the court. A trial date had been set for November 2001."

10. I interpose to say that a trial date had, indeed, been set for November; and the court had accepted that Mr Abbas could pursue the claim. But the court had not ruled on the claim save to the extent of the admissions to which I have referred. The appellant's notice continues:

"By striking out my claim and awarding costs against me has in effect taken away my livelihood.

Therefore the decision by Mr Justice Jacob was unfair and I did not get any justice. The decision is contrary to my rights under various Articles of the Human Rights Act 1998."

11. It may well be that the effect of striking out the claim and awarding costs against Mr Abbas will have serious consequences on his financial position, and even on his ability to earn a livelihood. But a decision is not unfair or contrary to Convention rights for that reason alone. If the judge was right to strike out the claim under the relevant provisions of the rules, the fact that his order had the effect about which Mr Abbas complains in his appellant's notice is not itself a reason for interfering with the judge's decision. The grounds for appeal continue:

"My skeleton argument will show together with the transcript of 23 and 24 July 2001 that the judge was completely and utterly biased against me. He did not act impartially."

12. That ground, if made out, would undoubtedly be a ground for setting aside the order made below. The question was whether that ground could be made out. The next paragraph in the grounds of appeal is this:

"This case is very complex and has already been on numerous occasions in the Court of Appeal. On one occasion I wrote to and received confirmation from Lord Gibson that fraud and criminal actions by the other side were perpetrated. These issues have not been resolved partly because of my health."

13. The reference there is to a letter from Peter Gibson LJ following a hearing in this Court in which he indicated to Mr Abbas that, if his complaint was that an order had been obtained by fraud, then the remedy lay in a fresh action to set aside the order on the grounds of fraud. There is no basis for the allegation that Peter Gibson LJ found that fraud or criminal action had been committed. He was not addressing those issues.
14. The final paragraph of the grounds of appeal states:

"On 2 August 2001 I have been given clearance from my heart specialist that I am now fully recovered and can now concentrate fully on matters before the court and defend my right for justice."

15. That paragraph is material because it is Mr Abbas' case that between May and August 2001, he was not in a position to concentrate on matters in this case because of his ill-health.
16. It will be apparent, however, from the grounds which I have read that the real complaint is that made in the third paragraph: namely, that the judge is said to have been completely and utterly biased and to have failed to act impartially.
17. When this matter came before this Court in October 2001, Sir Murray Stuart-Smith and I were concerned that we could not investigate properly the allegation that the transcript of 23/24 July 2001 would show, as alleged, that the judge was completely and utterly biased without seeing that transcript. Accordingly we stood the matter over so that a complete transcript of those proceedings should be provided to Mr Abbas and to this Court at public expense. That has now been done. The application has now been restored before me, with a complete transcript of the proceedings on those days.
18. The skeleton argument of 21 August 2001, to which Mr Abbas referred in his grounds of appeal, has now been supplemented by a skeleton argument prepared for this hearing dated 18 December 2001, upon which Mr Abbas has addressed me. He has put his points with courtesy and moderation. I fear that - inevitably perhaps - he will take the view that I have not given them proper consideration. But I have sought to note the points that he has made and I must now address them.
19. The first, and perhaps the most important, point made is that the judge failed to give proper weight to Mr Abbas' medical condition in May and July 2001. The only evidence of that medical condition is contained in a letter dated 16 May 2001 from Dr Fiona Cornish addressed "To whom it may concern". It is unnecessary and would be inappropriate to read in open court the details contained in that letter. It is sufficient to refer to the penultimate paragraph of the letter where the doctor writes:

"He [Mr Abbas] is not fit to attend Court in this state of health and he is unlikely to be in a better state in November 2001. I feel adamantly that the effect of attending a Court would be very detrimental to his health. The prognosis is very uncertain and even with continued drug treatment, he is unlikely to be more stable than he currently is."

20. Happily, events seem to have overtaken that prognosis; because on 2 August 2001, within a couple of weeks of the hearing before Jacob J, Mr Abbas was fully recovered; as he says in his grounds of appeal.
21. The judge had to consider whether the evidence of Dr Cornish gave rise to reasonable grounds for Mr Abbas' failure to comply with the order which he had made on 8 May 2001. Mr Abbas referred to the point in the course of his submissions to the judge on that day at page 33 of the transcript. The judge said that he had no medical report, although he did have a letter and Mr Abbas had emphasised that he was under tremendous pressure. The judge referred to the matter in his judgment at page 8 line 28 through to page 9 line 8. He said:

"At the same time enquiries were made of Mr Abbas' medical condition [that is to say, at the beginning of May 2001]. I had asked that there be a full medical report. No full medical report was ever sent, but Mr Abbas did send a letter from his GP [that is a reference to the letter of 16 May]. She reiterated that Mr Abbas was suffering from a recurring condition, and was not really fit to conduct the trial, and was unlikely to be able to conduct the trial. No further information has been given by Mr Abbas as to his medical condition, notwithstanding a request both before and after May. Today I was told that he has an appointment to see a specialist again in early August. But Mr Abbas said he was in a position to conduct the trial.

I certainly do not have medical evidence that Mr Abbas was not in a position to comply with the court order of 8 May, or any of the earlier court orders. Some of the matters required did not require him to do things himself."

22. He returned to the point on page 13 of his judgment where, after referring to Mr Abbas' medical condition, he expressed the view that Mr Abbas had deliberately refused to address the court order. The judge continued:

"[His medical condition] had nothing whatever to do with the court order of 8 May, and indeed before then, to now, having regard to the condition I saw him in today, appears to me to be nonsense. I can only attribute his behaviour to be deliberate non-compliance."

23. On the basis that he might be wrong, however, the judge went on to consider whether there was a good explanation for the failure.
24. That, as it seems to me, does not point to judicial bias. The judge had to consider whether, on the evidence before him, he should come to the conclusion that Mr Abbas was unable to comply with the order of 8 May 2001 requiring him to make disclosure and to provide witness statements. The order of 8 May 2001 did not require him to attend court. The judge took into account how Mr Abbas appeared to him on 23 July 2001; but did so in the context of asking himself, "Is this a man who was unable to comply with the tasks set by the order of 8 May?" Whether or not the judge was right to conclude that Mr Abbas was able to comply with that order is not the issue on which Mr Abbas currently relies. He relies on those passages as indicating evidence of bias. In my view they do not come near to that.
25. The second point about which Mr Abbas complains is that the judge failed to appreciate that he had done all he could in relation to the preparation of lists of documents. The judge dealt with that in some detail. He came to the conclusion that there had been no proper effort to provide a list of documents. A box of documents had been delivered to the offices of Seer's solicitors with no attempt to list them or to sort them into those which were or were not relevant. The matter did not stop with lists of documents. There was a requirement for the service of witness statements. The judge may or may not have been right to conclude that Mr Abbas had made no proper effort, but I cannot detect evidence of bias, unless one proceeds from the premise - as, I suspect, Mr Abbas does - that a decision against him is necessarily a biased decision.
26. There was an incident in the course of the proceedings on 23 July 2001 (page 22 of the transcript) in which the judge directed Mrs Abbas (who was assisting her husband) to refrain from interrupting. Mrs Abbas was concerned to emphasise points she felt her husband was not making with sufficient force. The judge indicated that he would have her removed from the court if she persisted in that course. Indeed, he adjourned for that purpose. Her response was, "I would like to go and go of my own accord because I am in contempt of this court". I am sure that was not intended to be taken as an admission that she was acting in contempt of court; but, rather, as an expression of her view that she had contempt for the court. Having read the transcript carefully, it seems to me that the judge was entitled to take the view that he could not continue to conduct a hearing if Mrs Abbas was going to interrupt. He was entitled to take the view that the only course was to ask her to leave.
27. Mr Abbas complains, in paragraph 11 of his skeleton argument, that Seer had themselves failed to make proper discovery of documents emanating from a Swiss bank; so that even-handedness required that he should not be penalised for failing to make discovery himself. That is not the way the system can work. Parties must comply with orders of the court. If Mr Abbas had a complaint against Seer in respect of discovery, then his course was to seek an order for specific discovery against Seer and to apply for a remedy if Seer failed to comply with it. It is not an appropriate response for Mr Abbas to refuse or fail to comply with an order made against him on the ground that Seer was failing to do what he says it should have done.
28. Mr Abbas contends that the judge was biased in treating him as a person who had refused to settle. At page 1 line 23 of the judgment, the judge said this:

"According to Mr Cohen, Seer were willing to settle the matter, recognising they had wrongly taken a freezing order, recognising that they had wrongly dismissed him without notice, and were willing to pay him a considerable sum and all his legal costs, but Mr Abbas was not remotely satisfied with that offer."

29. In his skeleton argument Mr Abbas draws attention to matters which were not put before the judge; in particular as to negotiations which he was prepared to undertake. It seems to me that that point is irrelevant. Mr Abbas was entitled to refuse to settle a claim if he were offered a sum which was less than he thought the claim was worth. The point made by Mr Cohen, and to which the judge was referring, was that this was not a case in which there was "nothing on the table". Had the judge made, which he did in order to penalise Mr Abbas for not taking what was on the table, then, plainly, that would have been a wrong exercise of his discretion. But there is nothing in the judgment to suggest that that fact led the judge to make the order which he did.
30. There are two further matters of complaint to which I should refer. The first is that the judge made an order on paper on 11 April 2000 - to which he refers at page 2 line 25 of his judgment, and again at page 8 between lines 6 and 20 - for disclosure of three particular classes of documents. That order was made before the order of 8 May 2001 and there was opportunity to seek to set it aside on 8 May 2001 if, as Mr Abbas contends, it should not have been made. But he did not seek to do that.
31. Finally, the judge made a remark after judgment on the morning of 24 July 2001 (transcript page 20 lines 5 - 9) in the absence of Mr Abbas, in response to an observation of counsel, in these terms:

"I mean you may or may not make bankrupt. You have been open about it, you have said well, if this is the end of it today, you take the money in court and call it quits and that is the end of it."

32. Mr Abbas has asked me to construe that as advice by the judge to make him bankrupt. I do not read that passage in that light. Plainly, the option of seeking a bankruptcy order existed in circumstances that Seer had substantial orders for costs against Mr Abbas. But what was being suggested in the proceedings of 24 July 2001 was that, because Seer would submit to judgment for £135,000 odd in respect of the items which were admitted, they would be prepared to walk away and call it quits. I find nothing in that remark of the judge indicative of bias or apparent bias.
33. In those circumstances I reject the suggestion that this Court could be persuaded to allow an appeal, on the basis alleged in the grounds of appeal, that the judge was completely and utterly biased and did not act impartially.
34. The position, therefore, is whether the judge was entitled to make the order on the material that was before him; making the assumption, as I do, that he has not been shown to have approached the matter other than objectively. His decision was a matter for his discretion; provided that he took into account the matters which should have be taken into account and left out of account matters which should not been taken into account. In his judgment he goes through, in detail, the matters which he has taken into account and no criticism is or can be made of those.
35. Mr Abbas feels very strongly that the judge reached the wrong conclusion. But, in order to succeed in this court, he would have to persuade the Court that the judge's conclusion that this was a claim which Mr Abbas was unwilling to progress to trial was a conclusion that the judge was not entitled to reach in the exercise of his discretion. In my view there is no real prospect of him succeeding on that. It follows that the test for grant of permission to appeal is not satisfied and the application must be dismissed.
Order: Permission to appeal refused.