England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(MR RECORDER ALLEN QC)

		Royal Courts of Justice Strand London WC2 Thursday, 25th July 2002

Thursday, 25th July 2002

1. LORD JUSTICE CHADWICK: There are before me two applications, 2002/0786 and 2002/0951; together with an ancillary application to adduce further evidence and for an order for discovery; and in both cases applications for extension of time.
2. The first application, 2002/0786, is an application for permission to appeal against an order made on 25th March 2002 by Mr Recorder Alan QC in Leeds County Court on the application of the present applicant, Miss Bushra Anwar, a former solicitor, under section 282(1)(a) of the Insolvency Act 1986 for the annulment of a bankruptcy order which had been made against her on 18th May 2000 in the Blackburn County Court.
3. The bankruptcy order was made on a petition presented in the name of Mohammed Afzal, a creditor under a judgment in the Queen's Bench Division of the High Court given by Sachs J on 25th September 1996 in contempt proceedings against Miss Anwar. The amount of the judgment debt and the taxed costs, on which the bankruptcy petition was based, was some £13,000. The second application before me, 2002/0951 - to which I shall return - is an application for permission to appeal from the order of September 1996. An appeal - and so far as permission to appeal is required, an application for permission to appeal against that order is long out of time; the order having been made more than five and a half years ago.
4. Section 282(1)(a) of the Insolvency Act 1986 - under which the application was made to the Leeds County Court - provides that the court may annul a bankruptcy order if it appears to the court that on any grounds existing at the time of the order the order ought not to have been made. The section requires the court to focus on the grounds upon which the order was made.
5. The grounds advanced by the applicant in support of her application that the bankruptcy order ought not to have been made were that the petition was presented without the authority of the named petitioner, Mr Afzal. That may be thought a surprising allegation in the circumstances that the petition was endorsed by a firm of solicitors, Messrs Farleys of Richmond Terrace, Blackburn; and was verified by an affidavit sworn by Mr Jonathan Bridge, a solicitor with that firm, who deposed that he had the authority of the petitioner to make that affidavit. Nevertheless, the allegation made before the recorder was that Mr Bridge, knowing of his want of authority, intentionally misrepresented to the court and to the world at large that Farleys did have the authority of Mr Afzal to prosecute the bankruptcy proceedings; and that he did so for the deliberate purpose of making Miss Anwar bankrupt for his own purposes. It was her case that he was motivated in pursuing the bankruptcy proceedings against her without Mr Afzal's authority by racial and sexual prejudice, ambition and the desire to achieve personal advancement within Farleys. It was her case, and she has never shrunk from it, that Mr Bridge had lied on oath, had induced employees and third parties to lie on oath, and was guilty of misleading the court and attempting to pervert the course of justice. As the judge said at paragraph 6 of his judgment:

"Those are, of course, very serious allegations. They are amongst the most serious which can be levelled at a solicitor of the Supreme Court..."

6. Messrs Farleys were joined as second respondent to the application made under section 282 of the 1986 Act and were represented before the court by counsel. Mr Bridge gave evidence as did two other employees or former employees of that firm. They were cross-examined. Mr Afzal was not represented; but the applicant relied on two affidavits which he had sworn on 21st September 2001 and Mr Afzal was cross-examined on that evidence.
7. The judge in a full and careful judgment set out the history which had led to the order made against the applicant in September 1996. It is unnecessary to rehearse that history at any length for the purpose of this judgment. It is enough to mention the following matters: (i) the applicant was herself employed by Farleys in the early 1990s; (ii) she had left that firm and set up in practice on her own account as a solicitor in Blackburn; (iii) in the course of practice on her own account she had acted for Mr Afzal in a conveyancing transaction; (iv) in 1995, she had obtained judgment against Mr Afzal in the Blackburn County Court on a promissory note given by him in connection with that transaction; (v) on 8th September 1995 she forced access to Mr Afzal's home, in which his wife and children were present, on the basis of an Anton Pillar order made by a district judge; (vi) she was held guilty of contempt of court by Sachs J in connection with breaches of the undertakings which she had given when obtaining the Anton Pillar order; (vii) Farleys - and in particular Mr Bridge - had acted for Mr Afzal in those contempt proceedings; and (viii) it was those proceedings which led to the order for damages and costs which was the basis of the bankruptcy petition. I should add that Sachs J formed an extremely unfavourable view of the applicant's conduct and directed that a copy of his judgment be sent to the Office for the Supervision of Solicitors. In May 1999 the applicant's name was struck off the Roll of Solicitors.
8. The recorder directed himself, correctly, that the issue for determination before him was whether Farleys had acted without authority when they presented the bankruptcy petition on the 16th March 2000; and pursued that petition to a bankruptcy order on 12th May 2000.
9. The evidence on which the applicant relied was, primarily, that of Mr Afzal - who had said (in an affidavit which the applicant had prepared for him to swear) that he had never given Farleys any instructions to pursue bankruptcy against Miss Anwar or in respect of any matter against her, other than to remove the judgment of 3376 which she had obtained against him on the promissory note. Mr Afzal was cross-examined. The judge was not impressed by the evidence which he gave in the witness box. The judge said this, at paragraph 38 of his judgment:

"I listened very carefully to the questions put by Miss Wilson-Barnes [counsel for Farleys] to Mr Afzal and the answers which he gave by reference to the copy documents and I also paid particular attention to Mr Afzal's demeanour when answering Miss Wilson-Barnes' questions. I became increasingly concerned as to the truth of Mr Afzal's answers, of his evidence in general and of his personal honesty. I formed the view that he was not only giving evidence on oath before the court which was false but, I very much regret to say, that Mr Afzal knew his evidence was false. I, therefore, warned Mr Afzal as to the consequences of him giving evidence before the court which he knew to be false or did not believe to be true."

10. That warning was given in December 2001. The matter was adjourned to a further hearing in February 2002 and Mr Afzal gave further evidence at that adjourned hearing. The judge commented on that further evidence in these terms:

"The evidence which he [Mr Afzal] gave before this court in February 2002 was, in my judgment, false and known by Mr Afzal to be false when he gave that evidence."

11. There was ample material, in the form of solicitors' letters and attendance notes and file notes, to provide a foundation for the judge's view that Mr Afzal was not telling the truth. The judge sets that out in 12 numbered subparagraphs under paragraph 39 of his judgment. Indeed, the evidence of those documents was overwhelming. Miss Anwar sought to meet that documentary evidence by alleging that the letters, attendance and file notes are all fabricated. Clearly the judge did not take that view.
12. By contrast, the judge found Mr Bridge - and the two other employees of Farleys, Miss Tracy Thompson, and Miss Ruth Downs - to be truthful and honest witnesses. He accepted their evidence in its entirety. He said this at paragraph 50 of his judgment:

"I accept all this evidence of Mr Bridge. In addition thereto I fully accept that Mr Afzal had full knowledge of the insolvency proceedings commenced against Miss Anwar, that he understood precisely the nature and effect of such proceedings and that he was kept fully informed by Messrs Farleys of the conduct of those proceedings so as to enable him to make a full and informed appraisal of the same for the purpose of him authorising further pursuit of those proceedings against Miss Anwar."

13. Accordingly, he dismissed the application to annul on the ground that he was satisfied that Mr Afzal had authorised the service of the statutory demand and the prosecution of the bankruptcy proceedings. Further, so far as relevant, that Mr Afzal authorised Farleys to opposes an appeal from the bankruptcy order.
14. The judge went on to categorise as disgraceful and deserving of condemnation the allegations made by Miss Anwar against Mr Bridge to which I have referred. He pointed out that she had adduced no evidence in support of those allegations and that he was satisfied that they "were scandalous and without any foundation in fact whatsoever". He said this:

"The fact that they were made and were made in total disregard in the absence of any evidence to support such does the greatest discredit to Miss Anwar."

15. He also took the view, as he said in paragraph 56 of his judgment, that Mr Afzal's testimony was false testimony before the court and was so serious that it warranted reference to the Crown Prosecution Service for consideration whether any prosecution should be instigated.
16. In the light of those clear findings of fact made by the judge who had seen and heard the witnesses at trial - and whose conclusion was fully supported by the documentary evidence - an application for permission to appeal to this court ought to been recognised as hopeless; at least by an applicant who was herself formerly a solicitor. There is no prospect that this court would interfere with the findings made by the judge on the material that was before him.
17. But, it is said, the applicant has now new evidence on which she wishes to rely which shows that Mr Bridge had lied to the court; and that, if the judge had been aware of that evidence, he would not have accepted Mr Bridge as an honest and truthful witness. The judge would, it must be postulated, have taken the further step of rejecting all the documentary material in Farleys' files - notwithstanding that that material was supported by Miss Downs and Miss Thompson - as fabricated.
18. The further evidence is comprised in a letter from the Legal Services Commission dated 26th March 2002. The letter exhibits Legal Aid Certificates taken from the Legal Services computer system on 25th March 2002. Those certificates show that Mr Afzal was granted an emergency Legal Aid Certificate in 1995 which was ultimately discharged in 1997; no other certificate in relation to the bankruptcy petition was ever issued. That material was plainly available to be put before the judge if the applicant had thought it relevant; in the sense that what could be obtained from the Legal Services Commission in March 2002 could no doubt have been obtained several months earlier. It is pertinent to have in mind that this was an application which had been adjourned from December 2001 to March 2002. Further, the material was in fact put before the judge on 10th April 2002, at a time when the applicant was seeking permission from the judge to appeal to this court and before his order dismissing the application under section 282 had been drawn up. It would have been open to the judge, therefore, if he had thought this material of importance or relevance to consider it and to review his findings in the light of it. The importance of the material is said to be that it shows that Mr Bridge lied to the court when he told the judge in February 2002 that Mr Anwar had been in receipt of legal aid until June 2001. The letter from the Legal Services Commission shows, it is said, that that could not have been right. It is further said that Mr Bridge must have known that it was not right; and that if he was prepared to deceive the court in that respect then all his other evidence must be called into question. In particular all his file notes, attendance notes and letters must be treated as fabrications.
19. In my view there are two difficulties in the way of that submission. First, the evidence does not meet the requirement that it could not have been obtained in advance of the trial. Indeed it plainly could have been obtained in advance of the trial; and it was obtained and was put before the judge before his order was entered. So it must be taken that the judge did not think that it would have had a material influence on the findings that he had made. That reflects the second difficulty; that for my part I cannot see that the material from the Legal Services Commission would have had any bearing on the findings made. The judge, as he said, was so concerned as to the quality of Mr Afzal's evidence that he would have reached the conclusion which he did even if Mr Bridge had given no evidence at all.
20. In those circumstances I would refuse the application for permission to adduce further evidence. Without that further evidence the application for permission to appeal is plainly hopeless, and must be refused also. There is no prospect that the court would feel able to interfere with findings made by the judge at the trial in the circumstances that I have described.
21. The second application, under reference 2002/0951, is for permission to appeal out of time against the order made by Sachs J on 25th September 1996. In relation to that order the position seems to me to be this. Insofar as the order required the applicant to make a payment to Mr Afzal and to pay his costs, the debt constituted by the order and the taxation of those costs is now a bankruptcy debt. Indeed, it was the debt upon which the bankruptcy petition was founded. The right to challenge that debt has vested in the trustee in bankruptcy. On the basis that the application to annul the bankruptcy has failed - and is not to be the subject of any appeal - the applicant has no standing in relation to that debt and no locus to appeal Sachs J's order.
22. In relation, however, to the finding that she was in contempt of court - and if the fine of £1,500 that was imposed upon her - she clearly does have the locus to make the application which she does make. The question in relation to that application is whether it should be permitted some five and a half years after the order was made.
23. The applicant has indicated that the decision not to appeal the judgment of 25th September 1996 was taken on advice after the judgment was delivered. But she says, she had never been happy with that advice and now has further evidence which, if she could put it before the court, would persuade the court that Sachs J's findings are unsafe.
24. It should be said that a number of the breaches of undertaking were admitted. The particular finding of breach which the applicant challenges is the finding that she disclosed to newspapers information which she had obtained from the entry into Mr Afzal's home in 1995. The evidence against her was that of two employees of hers - Susan Watson and Caroline McIlwaine. The applicant now seek to throw doubt on the evidence of each of those witnesses by reference to newspaper cuttings showing that they have had their difficulties subsequently and ought to be treated as unreliable. In the case of Miss Watson she relies also on an application made to an Employment Tribunal after Miss Watson had left her employment.
25. An underlying difficulty, as it seems to me, is that the applicant chose not to give evidence before Sachs J. She chose not to put before him her own version of events in a form in which it could be tested by cross-examination. She was, of course, entitled to take that position on an application for committal. But having taken that position in 1996 it does not seem to me that she should now be able to come to this court, five and a half years later, and say that she wishes to re-open the matter by challenging the credibility of other witness. The time for that was in 1996 and that time has long passed.
26. For those reasons I refuse permission to appeal out of time in relation to the finding of contempt and the fine. I strike out the application in relation to the other matters on the grounds that the has no locus to make it.
(Applications refused; no order for costs).