England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE EADY

		Royal Courts of Justice Strand, London, WC2A 2LL
		23rd February 2011

Lord Neuberger, MR:

1. There are before us two appeals and one application to appeal. The two appeals arise out of an order made by Sharp J on 19 February 2010 and the application for permission to appeal arises out of an order made by Eady J on 4 May 2010. The orders all arise out of proceedings brought by the claimant, Mr Shahrokh Mireskandari, against the defendant, Associated Newspapers Limited.
2. The claim form in the proceedings was issued on 25 September 2008 and alleges against the defendant a number of libels in their newspapers, the Daily Mail, the Evening Standard and London Lite. At the time of the issue of proceedings the claimant was a solicitor and the allegations made against him, which are said in the defendant's defence to be justified, consisted, in brief, of the following allegations. First, that he had been convicted of fraud in masterminding a telemarketing scam in California in 1991; secondly, that he deceived the Law Society in certain ways; thirdly, rather importantly for present purposes, that, while living in the United States, he had fraudulently used a social security number of a young lady, Tricia Darcy, who was working for him; and, fourthly, that, whilst working in the United Kingdom as a solicitor, he had employed a Mr Dizaei as a defence expert in prosecution.
3. The relevant allegation in the defence, so far as the present applications are concerned, begins in paragraph 6.10 of the defence, which is in these terms:

"When the Claimant's fraudulent business scheme had been forced to close […] he was not earning any money and needed assistance from others. He did not have his own social security number and therefore could not set up for himself an account for a mobile telephone. He therefore prevailed upon Ms Darcy to let him use her social security number in order to set up an account for a telephone for him to use."

And then the defence states that that is what he did.

4. In his reply, paragraph 19, the claimant said this:

"The claimant had his own security number and did not need, and did not ask, to use Ms Darcy's for the purpose of setting up a mobile telephone account or any other accounts."

5. Further information about paragraph 19 was provided by the claimant at a time he was not represented, in a letter dated 20 March 2009, after he had been asked to provide his United States social security number. Having said that it was private, the letter continued:

"However it should be noted that the Claimant is a United States Citizen and has had an American drivers license, bank accounts etc which all require a social security number. It would have been impossible to live in America and obtain the above without a social security number."

6. On 7 October 2010, Master Fontaine made an order, which contained, in paragraph 2, a direction that the claimant should provide a photocopy of his United States social security card together with certain other information, including, finally, in paragraph 2(b)(iv):

"whether the social security number was in use between January 1985 and January 1992."

7. After a hearing before Sharpe J, which included an appeal against parts of Master Fontaine's order, an order was made, inter alia upholding paragraph 2 of the Master's order. Sharpe J's order also included this:

"5. By 4 pm on Monday 22 March 2010 the Claimant must serve on the Defendant a witness statement explaining in detail

5.1 the reason for the inadequacies in his disclosure;

5.2 how and why he came to serve his second and third witness statements served on 18 December 2009; and

5.3 why he stated in those statements that the Defendant was not entitled to the relief sought on its application yet conceded in a further witness statement dated 18 February 2010 and through his Counsel in the day of the hearing that the Defendant was entitled to the relief sought.

6. If the Claimant's explanation in his witness statement in respect of subparagraphs 5.1 to 5.3 above is because of advice he received from Tehrani & Co then solicitor with conduct of the Claimant's disclosure at Tehrani & Co must serve a witness statement explaining how the matters in subparagraphs 5.1, 5.2 and 5.3 above proceeded in the way they did."

8. Subsequently, applications were made before Eady J, and he refused to make an order, requiring the defendant to:

"carry out a search in order to ascertain the number of occasions upon which it has instructed Sharp J as counsel […] between 1 January 2004 and the date of her appointment at the High Court Bench in 2009.[and certain other consequential matters which are unnecessary for me to refer]".

9. The first matter before us is a contention on behalf of the claimant that paragraphs 5 and 6 of Sharp J's order are inappropriate and unlawful in that they require, or may require, the claimant, or the claimant's solicitor, to reveal material which is the subject of legal professional privilege. It is not suggested that, subject to the legal professional privilege point, there would be anything objectionable in paragraphs 5 and 6 of Sharp J's order, which were occasioned by the fact that the claimant's record on disclosure had caused her considerable concern.
10. The objection based on privilege is a very unattractive submission. It is clear from the transcript of the hearing before Sharp J that Mr Winter QC, who then appeared for the claimant, did not raise any question of the possibility of the order being sought infringing his client's privilege, and the precise terms of paragraphs 5 and 6 of Sharp J's order were agreed, subsequent to the hearing, between junior counsel for the claimant and junior counsel for the defendant.
11. The other reason that this submission is unattractive is that paragraph 10 of the order agreed gives the parties "permission to apply". So, if there had been any concern, subsequent to the order being drawn up of the risk of the claimant being required to infringe or lose privilege by the terms of the order, the point could have been raised with the defendant's solicitors, and if they were not prepared to accept that privilege was still properly claimable, then the point could have been taken up with the judge.
12. In my view, however, quite apart from the point being unattractive, it is without foundation as a matter of law. Legal professional privilege is a fundamental aspect of our legal system, as was made clear in a number of cases in the House of Lords, perhaps most famously in R v Derby Magistrates Court ex parte B [1996] AC 487. In my view, it is little short of fanciful to think, in the absence of any clear statement in the order to the contrary, or any clear statement even in court in the hearing leading up to the order, that it was intended that, if he wished to maintain his full rights in respect of legal professional privilege, the claimant could not do so in order to comply with paragraphs 5 and 6.
13. Mr Booth QC made a number of points about the wording of paragraphs 5 and 6, and I accept that the drafting betrays the fact that the counsel probably did not consider the issue of privilege when agreeing terms, a point which is reflected by the fact that no reference was made to privilege in court. However, I am quite satisfied that any witness statement prepared in compliance with paragraph 5 or paragraph 6 of Sharp J's order, which makes it clear that in certain aspects it will not go into factual matters because privilege would be infringed would (provided, of course, that privilege was properly claimed) comply with paragraphs 5 and 6.
14. The second point which is appealed is that it is said to be inappropriate for Master Fontaine to have made the order in relation to the social ecurity number that she did, in paragraph 2(b)(iv) of her order and that Sharp J wrongly upheld it. In giving permission to appeal on this point, Sedley LJ expressed considerable concern about whether it was appropriate to grant permission, and he plainly only did so because he was concerned on the privilege point which I have just dealt with: it is pretty clear that he would not have granted permission to appeal on this point had it stood on its own.
15. Nonetheless, Mr Miller QC realistically has accepted that this point is before us and we have to deal with it on its merits. If matters had stopped with the defence and the reply, and in particular the passages in paragraph 6.10 and paragraph 19, which I have quoted, then one can see the attraction of the argument that the actual question of the use of the social security number was not in issue between the parties. It may have arisen from what was a rather limited way of pleading the point in paragraph 6.10 of the defence, but, whether or not that would have been fair, there clearly would have been something in the point.
16. However, I accept Mr Miller's point that the further information provided by the claimant in his letter of 20 March 2009 does put in issue, or potentially put in issue, the question of the use of the social security number. It seems to me that, to put it at its lowest, the Master and Sharp J were reasonable in taking the view that paragraph 2(b)(iv) of the order made by Master Fontaine was an appropriate order to make and it does not seem to me right for this court to intervene.
17. The final issue on which permission to appeal was refused by Sedley LJ, but for which Mr Booth renews the application today, is in connection with the refusal of Eady J to order the defendant to give the information about instructing Sharp J in the five or six years preceding her appointment as a judge. Sharp J was of course a well-known practitioner at the defamation Bar, and it does appear that she acted in a number of earlier cases for the defendant.
18. However, as Eady J rightly mentioned, in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451 at paragraph 25 the Court of Appeal said:

"Nor, at any rate ordinarily, could an objection be soundly based on the judge's […] previous receipt of instructions to act for or against any party, solicitor or advocate in a case before him [or her]."

19. When one is concerned with a case of apparent bias, which is what is alleged here, the test is that laid down in Porter v Magill [2002] 2 AC 357 at paragraphs 102-3, and I quote, amending slightly:

"The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer [having considered the facts] to conclude that there was a real possibility […] that the tribunal was biased."

20. At the moment there is no basis for such an allegation other than, at the very most, a suspicion. I am not saying that there is ground for even a mere suspicion. However, assuming in the claimant's favour that there is, the proper course would have been obviously to raise it either in the form of a letter or at a hearing with the judge concerned. I note that, when the matter was before Sharp J, the point was not raised. No doubt all the information available to the claimant, including the possibility of her having been involved with the claimant between Mr Dizaei, to whom I have referred, and the defendant would have been available at that time, and the point could have been raised with her in an appropriately unaggressive and open way. That is the right way to proceed. Sharp J no doubt would then have done what she thought was appropriate, and it is not right for me to go into what she could or could not have done in such circumstances. To my mind, the approach actually adipted was a quite inappropriate way to proceed in relation to any concerns which the claimant claims that he had.
21. Accordingly, for my part, on the two matters for which permission to appeal has been given, I would dismiss the appeals, and, on the matter on which permission is required, I would, in agreement with Sedley LJ, refuse permission.

Lord Justice Hooper:

22. I agree.

Lord Justice Rimer:

23. I also agree.

Order: Appeals dismissed; application refused