England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Patten)

		Royal Courts of Justice Strand London WC2 Friday, 26th July 2002

1. SIR ANTHONY EVANS: Mr. Roy Pybus was in practice for many years in Liverpool as a solicitor where, as he has told me this morning, he did mainly criminal work and did so largely in the local magistrates' court. He said that by way of apology for what he felt were his own shortcomings in appearing on his own behalf before me today. I have to say that he need not have apologised. He presented his submissions clearly in a matter which is not free from complications. An apology was quite unnecessary. He produced a medical certificate, a letter from his doctor dated 30th May of this year, in which the doctor expressed the view that, owing to the stress which he is under and has been under for an appreciable time, Mr. Pybus was not in a condition where he was able to represent himself on this application. Mr. Pybus, on the strength of that certificate, made his first application today, one for an adjournment of the substantive matters, which are his applications for permission to appeal in a total of four related matters. Had I thought at any stage that Mr Pybus was not able to do justice to him and his case, I would have immediately been prepared to accede to that application for an adjournment, but he did, as I hope he will accept, conduct the matter clearly and well, and I was not aware at any time that the stress, which I am sure he has been under and remains under, was harming his presentation of the case in any way.
2. His troubles began in an acute form on 3rd February 2000. On 13th August 1999 the Office for the Supervision of Solicitors had applied to the Solicitors Disciplinary Tribunal in relation to three charges, of which the principal one was an allegation that Mr. Pybus had wrongfully withheld documents which he should have released to a client or former client. That matter came before the Solicitors Disciplinary Tribunal on 3rd February. Unfortunately for him, Mr. Pybus did not appear. There had been some telephone conversations and fax messages during the previous days. Mr. Pybus had sent to the Tribunal a medical certificate which stated that he was unable to appear for the purposes of those proceedings that day. The Tribunal were, perhaps understandably, incensed to find that in fact Mr. Pybus was appearing in the Liverpool Magistrates' Court on behalf of a client. They decided that they would proceed to hear the allegations and decide them in Mr. Pybus's absence. They found the allegations proved and they imposed fines totalling £6,000 upon the respondent. They expressed themselves in strong language, which included a statement that Mr. Pybus's behaviour had been a disgrace to his profession, that he had made disingenuous attempts to have the substantive hearing adjourned and had lodged with the Tribunal a statement which was unhelpful, confusing and obfuscatory. The Tribunal hoped that the respondent would in future moderate his wholly inappropriate attitude to his professional body and to the Tribunal. I have quoted that for two reasons, first to show that the criticisms that were made of Mr. Pybus in that passage were directed principally to his attitude to the Tribunal and to the Law Society rather than expressing a view on the matters which were the subject matter of the principal allegation that was made against him and, second, in order to emphasize, as I would, that there was no suggestion that I have seen that Mr. Pybus's conduct in relation to his client or in relation to the Tribunal had been dishonest in any way. Though those comments were wounding and they make the matter one of considerable importance to him, I think it right to begin this judgment by saying that, as far as I have seen, there has been no suggestion that he has behaved dishonestly at any stage of these long, drawn out matters. It may well be that his behaviour has been unhelpful, confusing and obfuscatory in certain respects. It may be that his attitude has been wholly inappropriate, but I would be prepared to accept that, to a large measure, those criticisms are justified only because he has been under very considerable stress throughout the whole of the relevant period. I would add this. His conduct of the hearing today has been helpful and courteous, and I would echo what one of the judges whose decision is appealed said, which I think was to the same effect. It seemed to me that, having decided that I should continue with the hearing at least for so long as Mr. Pybus was able to give the appearance of conducting the case competently on his own behalf, I should, at the least, try to get to what appeared to be the substantial issues that are at stake. They have become hopelessly overloaded with all manner of procedural issues, principally in relation to whether applications were made in time or out of time. It seemed to me that, in justice to Mr Pybus's applications, it would be right for me to consider what appear to be the essential merits and to consider the substantive issues which are raised by his four applications rather than the procedural growth which has attached to them.
3. Following the hearing on 3rd February 2000, Mr. Pybus applied to a differently constituted Solicitors Disciplinary Tribunal for a rehearing of the matter that had been decided on 3rd February. On 23rd April that application was refused. It will be apparent from what I have already said that the 3rd February decision had really been two decisions; first, a decision to proceed in Mr. Pybus's absence, and, secondly, a decision on the substantive matters which, likewise, were made against Mr. Pybus in his absence. The application for a rehearing was directed only to the first of those matters, that is to say, the February Tribunal's decision to proceed.
4. He then applied on 20th May, according to the later judgment of Rose LJ, but it may have been as early as 8th May judging by the date shown on the form, to the Administrative Court for appropriate orders, in particular an application to appeal against the February decision. That application to the court was not heard until 20th November 2001 when it came before the Administrative Court, consisting of Rose LJ and two judges of the Queen's Bench Division. It was treated as, first, an application for an extension of time to appeal against the February Tribunal ruling and, secondly, as an application for permission to appeal if time was extended. The application was refused and today Mr. Pybus seeks permission to appeal against that November 2001 judgment of the Divisional Court.
5. By November 2001, however, much had happened in the meantime. On 2nd May 2000 Mr. Pybus was adjudged bankrupt. In consequence of that, on 10th May 2000 the Law Society exercised their statutory power to intervene in Mr. Pybus's practice. On 26th May he applied to have that intervention withdrawn. What the intervention meant in practice was that another firm of solicitors, Bermans, were appointed as agents for the Law Society to take over the conduct of the practice from Mr. Pybus. In October 2000 the bankruptcy was annulled. Perhaps, had the matter rested there, there would have been no further problems and the intervention would have been withdrawn.
6. However, there was another matter which did intervene, that is on 14th June 2000 when the Law Society intervened in Mr. Pybus's practice for the second time. This was because of what were alleged to have been irregularities in his client accounts. Again, I have seen no indication that there was any allegation of dishonesty against him. On 29th June 2000 Mr. Pybus applied to have that second intervention withdrawn. The two applications therefore in respect of the two interventions were consolidated. They were fixed for trial on 1st June 2001. However, His Honour Judge Howarth, sitting as a Queen's Bench judge, adjourned the matter to a date which proved to be 11th December 2001, when they came before Patten J. The primary ground for that adjournment was that the judge considered that Mr. Pybus should have the advantage of representation by counsel. That necessitated a grant of public funding. His efforts until that date had not been successful in obtaining it.
7. Just before the hearing before Patten J, on 7th December Mr. Pybus made an application to Lloyd J, essentially for the delivery of certain documents which he required so as to have information for the purposes of the pending proceedings and, secondly, in essence for the power or ability to recover fees which were due to his practice. Lloyd J treated the matter, in essence, as an application to adjourn the forthcoming hearing before Patten J. He held that the application was made so late and so shortly before that intended date of hearing that it should be refused. That was on 7th December and Mr. Pybus seeks permission to appeal from that ruling.
8. So far as the hearing before Patten J was concerned, this took place on 11th and 12th December. He gave a careful and lengthy judgment, which sets out the matter in some detail and explains exactly why he came to the conclusion which he did. His conclusion was as follows:

"The practical question, however, is whether and to what extent that can be achieved [that was the recovery of fees owing to the practice] short of bringing the intervention to an end."

9. The agents for the Law Society had agreed that Mr. Pybus should have access to documents in order to recover fees but only on the basis that it would be supervised access. Mr. Pybus had been unwilling to accept that. The judge said this:

"The position as it stands today is that there are no live files; most of the client account funds have, as I understand it, been disbursed to those entitled to them;Mr Pybus is only entitled to practise on terms that he does not hold clients' money. In those circumstances it seems to me that the withdrawal of the notices of intervention would serve no useful purpose whatsoever. Indeed the only real basis of the application is, as I have already indicated, to facilitate the recovery of fees from former clients of Mr Pybus. For the reasons that I have already given, that can be more than adequately dealt with, in my judgment, by a process of supervised access, which is readily available."

10. The applications were refused. The third and fourth applications today are for permission to appeal against that judgment.
11. The story does not end there because the inevitable effect of the Law Society's intervention was immediately to suspend the practising certificate which was currently in force in respect of Mr. Pybus, but, as Patten J said:

"The consequences of that are, however, ameliorated to some extent by section 16 of the 1974 Act, which entitles a solicitor whose practising certificate has been suspended, either by virtue of an order or adjudication in bankruptcy under section 15(1) or by virtue of an intervention under section 15(1)(a) to apply to the Society to terminate that suspension. On an application made under section 16(3) for that purpose, the Society has a discretion... to make an order terminating the suspension, either unconditionally or subject to such conditions as the Society may think fit. Where the suspension is terminated subject to conditions, the solicitor has a right of appeal under subsection (5) against that decision to the Master of the Rolls.

In the present case Mr Pybus, following the intervention in his practice, made such an application to the Law Society, which decided to terminate the suspension, as I understand it, on conditions which have the effect of restricting Mr Pybus's ability to practise to circumstances in which he is subject to supervision and in which he is not able, in particular, to hold clients' monies. Mr Pybus has objected to those conditions but no effective appeal against this imposition has taken place."

12. Mr. Pybus explained to me that he had not pursued that potential appeal to the Master of the Rolls because he had been advised and formed the view that he should first wait for the judgment on his applications to have the intervention withdrawn. He told Patten J that after the judgment. I asked him today whether, since December when Patten J gave the judgment, he had pursued that application to the Master of the Rolls. He told me that those matters have been overtaken by events, for this reason. At the time of Patten J's judgment there were pending proceedings before the Solicitors Disciplinary Tribunal in respect of irregularities in client accounts which had formed the subject matter or the basis for the second intervention. Those proceedings came before the Solicitors Disciplinary Tribunal on 6th June of this year. The allegations were found proved and the sentence which was passed was that Mr. Pybus was ordered to be struck off the record of solicitors. He has now lodged a notice of appeal or made an application to the Administrative Court in respect of that ruling of the Tribunal. The application includes an application for a stay of the Tribunal's striking off order.
13. The applications today in relation to the judgments of the Divisional Court, Rose LJ and Lloyd J, and Patten J, all are accompanied by applications for an extension of time in which to make those applications. Mr. Pybus will forgive me if I say that he has a history of living dangerously as regards time limits. In each of these cases there is, first of all, the question of whether his initial application was made within the time, 14 days in all cases, and, secondly, whether it should count as being made within time if the first application had been within the period, if some further delay occurred before the application was made in proper form. Apparently that has happened in relation to each of these matters, certainly to some of them. As he explained to me, this was originally due to his failure to realise that he should use the post-1999 CPR form rather than the previous ones. As a result, there is a considerable discrepancy in some cases between the date when the application was first received by the court and the date when it was treated as filed or issued, as the case may be. I propose to put all those procedural matters to one side.
14. In relation to what I have called Mr. Pybus's history of living dangerously with regard to time limits, I should add that this may well have been a symptom of the stress which he undoubtedly suffers and continues to suffer. I would also be prepared to recognize that, quite independently of that, there are difficulties in liaising with Court of Appeal offices in London, for someone, even a solicitor as he is or was, who is based in Liverpool.
15. I come to the four matters before me today, the first being the application to adjourn today's applications. For the reasons indicated, I have thought it appropriate not to grant that application. I should add that it was made in writing to Master Venne yesterday, accompanied by two letters dated 24th July, and that Mr. Pybus wrote a further letter dated 25th July which came before me this morning. Master Venne declined the adjournment and indicated that any application, if it was to be maintained, should be repeated today, as it has been.
16. I come next to the judgment of Patten J. Mr. Pybus's submissions have taken a number of individual points. What he identified as the main criticisms of the judgment can be expressed in this way. In relation to the question whether Mr. Pybus should be able to have access to the files and other documents in his offices which are necessary in order to claim fees, the judge found that the initiative did rest with Mr. Pybus -- that is in accordance with the then recent judgment of the court in the case of Dooley -- and that the statutory machinery is such that the Law Society agents and the Law Society itself would receive any proceeds of demand made by Mr. Pybus. Those proceeds would be held on trust for release to those beneficially entitled to them. In that way Mr Pybus would receive through that statutory machinery the net sums to which he was entitled, no doubt after deductions by the Law Society, among others, of what have become substantial costs and other obligations owed by Mr. Pybus to them. However, in that context, Mr Pybus said that if he had access to the documents it would be to the documents relating to a sizeable number of clients. He would be responsible for sending the demands to the clients and they were all clients who could be regarded as potential clients of his again when and if he is able to resume practice. He contrasts that finding with what became the judge's conclusion, that which he expressed as follows:

"The practice therefore that Mr. Pybus carried out prior to the intervention has to all intents and purposes ceased. Although I believe he retains his office premises, he tells me that his staff no longer work there, and that his mail in accordance with the intervention is re-routed to Bermans. There is in reality no practice which can be restored to him."

17. Mr. Pybus's point is a short one, that the files which would be relevant to the recovery of fees would relate to what would become, he would hope, the nucleus of a practice were he able to resume practice, and therefore the judge was wrong to hold that his previous practice had to all intents and purposes ceased.
18. In that context and with Mr. Pybus's help, I explored what his position was in the light of Patten J's judgment. The judge had refused to withdraw the intervention because he took the view, which I have already read, that it was sufficient for Mr. Pybus's purposes that he could have access to the files, albeit access which would be supervised by the Law Society's agents, Bermans. If Mr Pybus was prepared to accept that supervision, then there was nothing to stop him from immediately moving into the office in order to have access to the files for the purpose of demanding outstanding fees. He told me that the files have been removed to Leamington Spa, which I suspect is the headquarters of the Tribunal. He has asked the Law Society to have access to them there and he is hopeful that such arrangements can be made. Certainly, in the light of Patten J's judgment there is no reason why he should not be given access to them as soon as that can be arranged for the purpose identified by the judge.
19. In that situation, putting to one side the recent striking off, Mr. Pybus would be able, first, to bill those clients; second, to identify the nucleus of what he says would become his practice were his suspension limited, and then the question would arise whether the Law Society were right to impose the conditions which they did; that is to say, that he should be supervised and not have access to client accounts. With regards to supervision, he says that that is wholly unrealistic in the kind of practice which he has carried out, criminal work in the Liverpool Magistrates' Court mainly, and which he would hope to resume.
20. However, the appropriate method of dealing with that problem is for him to appeal to the Master of the Rolls or to a judge appointed by the Master of the Rolls. That he has not yet done. He recognizes that he can do it, either by appealing in relation to the existing Law Society response, or by making a fresh application for termination of his suspension and then, if necessary, pursuing that matter before the Master of the Rolls. In those ways, therefore, he has been able, by cooperation with the Law Society's agents, first of all to bring in the fees from former clients and, secondly, to put himself in a position where, he would hope, he can resume practice with those clients and no doubt he would hope with others. He cannot now do that because of the striking off order, but he will be in that position again if that order is either lifted on appeal or even if it is stayed pending the appeal application to the Administrative Court.
21. It seems to me, taking as I unashemedly do, a broad view and without seeking to identify all the individual points that Mr Pybus has made - he said, for example, that the Law Society was wrong in law to impose a second intervention, but unfortunately, a judgment of Carnwarth J in the case of Robert John Bradfield Giles on 12th April 1995 is against him on that, although he would seek to distinguish it - I come back to the question whether, in those circumstances, there is any realistic chance of an appeal succeeding against Patten J's judgment of 12th December. In my judgment, there is absolutely none. The judge was certainly entitled to come to the conclusion which he did and nothing that has happened since has brought any of it in question. He took the view that there was no need and no point in lifting the intervention, having regard to what was available to Mr. Pybus, that is to say, the access to the files in question, provided the access was supervised. In those circumstances, it seems to me that the application for permission to appeal against Patten J's order must be refused, regardless of any issues that might arise as to whether an extension of time is necessary.
22. The judgment of Lloyd J I suppose could be regarded as standing separately so that it could be appealed, even if the judgment of Patten J could not. But it seems to me that that is a wholly unrealistic view to take. The application to Lloyd J was treated by him as being an application to adjourn the hearing before Patten J. That hearing took place in fact. The application may or may not have been resumed before Patten J and was refused by him. Neither judge could be criticised for that decision; in other words, the decision not to adjourn. Insofar as Mr Pybus was seeking disclosure of documents before Lloyd J, the judge was entitled to take the view that it was far too late, that is to say, late in relation to the planned hearing before Patten J, for that application to be made. The reason it was made late was an unfortunate history of delay as between Mr Pybus and the Court of Appeal office (or I suppose this would be the offices of the Chancery Division) during the period between September and December. However that may be, the whole question of access to documents and information was dealt with by Patten J in the way I have described. It seems to me that any separate consideration of the judgment of Lloyd J would be quite unreal in those circumstances. In my judgment, therefore, and again independently of any time limit, that application must be refused.
23. So I return to what I mentioned first; that is to say, the judgment of the Divisional Court presided over by Rose LJ in November 2001. Here, I should go into more detail than I did previously. The decision of the Tribunal on 3rd February 2000 was in effect two separate decisions: first, the decision to proceed in Mr. Pybus's absence and, secondly, the decision on the substantive matters that were alleged against him. The application for a rehearing before the Tribunal in April was only concerned with the first of those matters. The application to the Divisional Court was concerned with both, but I think that it has to be said that the two were not clearly distinguished, either in the judgment or, from what Mr. Pybus has told me, in the course of the hearing.
24. The reasons given for refusing the application were as follows. Rose LJ first of all noted that an extension of time was sought, if necessary, for the lodging of the notice. The application was made at the earliest on 8th May. The time for appealing from the judgment from the Tribunal's decision of 3rd February in fact had not begun until 6th April and therefore had expired 14 days later on 20th April. The application therefore was filed outside the relevant period of 14 days and some months after the decision itself. Meanwhile, there had been the second Tribunal decision on 23rd April. In relation to that decision, the 14 days for appealing expired 14 days after whatever date it was that the reasons for that finding were published. No precise date was given, but it was certainly much later than the 8th or 20th May. In this situation Rose LJ said in paragraphs 3 and 4 of his judgment that an application for an extension of time must have related to an appeal against the 1st February decision and that on that basis the appeal was of the order of four weeks out of time. Mr. Pybus says and said then that the reason why there had been that delay was that he had waited, first, for the second application to the Tribunal and that it was only when that was refused on 21st April that he contemplated an appeal to the court. That is why he was appealing so long after the February decision against that decision. He submits that Rose LJ's judgment does not refer sufficiently to that contention or explanation which he gave.
25. The judgment continues by referring to a quite separate matter which occurred as long ago as 1995. On that occasion there had been a disciplinary tribunal hearing which had made findings against Mr Pybus with regard to conduct unbefitting the solicitor's profession. The judgment continues in paragraph 5:

"What is material is that, on that occasion, Mr Pybus sought the leave of the Divisional Court to appeal out of time against the tribunal's decision, he having failed to lodge a notice of appeal until some days after the 14-day period then provided within which to appeal had elapsed."

26. To put the matter shortly, Rose LJ said that what happened on that occasion should have made Mr Pybus realise the importance of complying with time limits in matters of this sort, and that one has in mind of course the fact that there is a substantial public interest in the solicitors profession being properly regulated and matters of this sort being dealt with in good time. The judgment then referred to the Tribunal's decision of February which I have quoted, and refers in paragraph 10 to the fact that, when the Tribunal proceeded to make its decision on the allegations that were before it on 3rd February, notwithstanding that they did so in his absence, they did have before them substantial written representations made by him, in particular to the Office for the Supervision of Solicitors, and they were considered by them. The Divisional Court therefore clearly contemplated that, in addition to deciding to proceed on 3rd February, the Tribunal which met on that date had also given separate consideration to the substantive issues raised before them. The judgment continues in paragraph 11:

"When Mr Pybus, in the course of his submissions to this court, was invited to identify the best point on his appeal if this court were to extend time to permit it to be pursued, he said that he had advised the tribunal that he had seen his doctor, who had advised that he was not fit to deal with a lengthy matter in court. Mr Pybus did not indicate that there were material matters, so far as the merits of the allegations made against him were concerned, which he might have put in the forefront of his appeal."

27. That paragraph encapsulates the observation which I made earlier, that there may have been insufficient distinction made between the question of whether the Tribunal should have proceeded on 3rd May in Mr. Pybus's absence and, on the other hand, their decision on the merits of the matter when they decided that they would do so. However, Mr. Pybus says that he got the impression, when he did put forward what he regarded as his best points on the substantive matters, that Rose LJ received that matter favourably to him. He was therefore aggrieved to find in paragraph 12:

"It suffices to say, therefore, on that aspect of the matter, having, as I have, read all the documentation in this case, including Mr Pybus's skeleton written submissions and the various other submissions which he has made over a period of time, that there does not appear to be any obvious merit in any ground of appeal."

28. It seems to me that that was referring, and can only have been referring, to what I have called the merits of the substantive issues rather than the merits of the complaint that the Tribunal had proceeded in Mr Pybus's absence. Rose LJ continued in paragraphs 13 and 14 by saying:

"The primary question, however, bearing that aspect of the case in mind, is whether this court should extend time in the context of the chronology which I earlier set out. Mr Pybus's submission, as I understand it, is that he was focusing on his application to the tribunal on 26th April, whereby he sought to have the 3rd February decision reviewed, and, in so focusing, lost sight of the 14-day period which the rules prescribe for challenging the decision of 3rd February. Mr Pybus referred to the interventions which have taken place in his practice and he referred to his lack of funds."

29. Pausing there, Rose LJ there does refer expressly to the suggestion that the reason for the delay in seeking leave to appeal against the February decision was due to the intervening event of the application for a rehearing to the Disciplinary Tribunal. Having done so, Rose LJ concluded:

"For my part, I would be inclined to have some sympathy with this application to extend time were it not for the events in 1995 to which I have referred. In my judgment, against that background, in the light of the importance which Mr Pybus must know that the court attaches to the expeditious pursuit of appeals within the time prescribed by the rules, I would not for my part extend time to permit this appeal to be pursued."

30. The other two judges agreed and for the same reasons.
31. Mr. Pybus, in my view, is entitled to say that the judgment of the Divisional Court leaves a measure of uncertainty as to whether the court had clearly in mind, first, that the extension of time was only sought if required and, secondly, that there was an argument or possible argument that the time had not expired by 8th May when the first intimation was given. On that basis the delay was rather less than the four weeks to which Rose LJ referred. Secondly, Mr. Pybus submits, again with a measure of force, that the court, if they regarded the appeal as one against the Tribunal's finding on 26th April, did not deal with it on the basis that the time had not expired.
32. However, looking at the matter overall, what Rose LJ referred to as the primary question was whether Mr. Pybus should be granted any extension of time, having regard to the background of the 1995 affair. Mr. Pybus submits that it was wrong and unfair to him that that matter should be relied on, but I cannot see the slightest reason why it was not relevant for the court to take it into account, for the reasons which they gave. Even if the decision as regards the refusal to extend time was open to question, it would then be necessary to ask whether there was any indication, so far as that court was concerned or so far as I am concerned today, that an appeal would have any realistic chance of success. Rose LJ expressed his view on that in the paragraph which I have read. I am bound to say that, notwithstanding the issue which Mr. Pybus has identified today, I do not see any possibility whatever of this court forming any other view as to the merits of the allegations as to the Tribunal's decision on the merits of the allegations as distinct from the Tribunal's decision to proceed. In those circumstances, it seems to me that, although like Rose LJ I would be inclined to have some sympathy for the appellant, the application has to be refused. It cannot have any realistic chance of success.
33. In conclusion I mention two further matters. In reaching that decision, I have not been influenced by the question whether it would indeed serve any useful purpose for the February 2000 decision to be reviewed in the circumstances which now exist, which I have already rehearsed at some length. I would accept, if that matter was material, that Mr. Pybus does have a genuine interest in challenging the remarks that were made about him as well as the charges that were found proved against him. However, as I have indicated, I do not think that there is any realistic chance that this court would be able to assist him in either of those respects. Secondly, I am aware that I have not dealt with all the matters that Mr. Pybus has put before me. I hope that I have said enough to indicate that, concentrating on the merits of the applications rather than the procedural attachments which they have, I find myself in a position where these applications must be refused.
Order: Applications refused.