England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(TAX AND CHANCERY CHAMBER)
(ANDREW BARTLETT QC, SANDI O'NEILL,
RUTHVEN GEMMELL), [2013] UKUT 140 (TCC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		22 May 2014

LORD JUSTICE VOS:

Introduction

1. This is the renewed oral application for permission to appeal a decision of the Upper Tribunal (Tax and Chancery Chamber) (Andrew Bartlett QC, Sandi O'Neill and Ruthven Gemmell) [2013] UKUT 140 (TCC) released on 20 March 2013 whereby the Upper Tribunal upheld the Financial Services Authority's making of a prohibition order under section 56 of the Financial Services and Markets Act 2000 prohibiting Mr Razzaq from performing any function in relation to any regulated activity and cancelling Mr Razzaq's permission under section 45 of the Financial Services and Markets Act 2000 on the basis that he failed to satisfy the threshold conditions of adequate resources and suitability.
2. Before dealing with the grounds of appeal that Mr Razzaq wishes to advance, I should set out the chronology background as briefly as I can. The Upper Tribunal found that on 1 May 2008 Mr Razzaq obtained the sum of approximately £10,000 from Whiteway Laidlaw Bank ("the bank") by a deliberate fraud. In addition the Upper Tribunal found that between 18 November 2008 and 6 January 2009 Mr Razzaq used his nephew's account for client money in breach of the rules. On 5 March 2009 Mr Razzaq's permission to carry out regulated insurance mediation activity was withdrawn at his own request. The Upper Tribunal found that between November 2009 and February 2010 Mr Razzaq had acted as an insurance intermediary knowing that he had no FSA permission to do so. On 8 December 2010 the FSA issued its decision notice making a prohibition order under section 56 of the 2000 Act prohibiting Mr Razzaq from performing any function in relation to any regulated activity.
3. Matters then progressed slowly but ultimately on 21 January 2013 a hearing took place in the Upper Tribunal. On 20 March 2013 the Upper Tribunal made a prohibition order under section 56 of the 2000 Act and cancelled Mr Razzaq's permissions under section 45 of the 2000 Act on the grounds of the main factual findings that I have already indicated were made against him.
4. On 11 June 2013 Mr Razzaq filed his grounds of appeal.

Summary of grounds of appeal

5. It has been difficult to fillet out the most important issues raised by Mr Razzaq from what is a somewhat rambling document headed "Grounds of Appeal". I am however able to summarise the most important elements of those grounds as follows. First, that Mr Bruce Tyler, the Chief Executive of the bank, was not called to give evidence so that Mr Razzaq could cross-examine him. Secondly, that Mr Michael Monitz of Clegg Gifford, despite having giving a witness statement, was also not called to give evidence so that Mr Razzaq could cross-examine him. Thirdly, that the Upper Tribunal's procedure as regards witnesses was unfair or unjust in that Mr Ward's memory was unimpressive, certain witnesses were not called when they ought to have been called, witness that were called could not be relied upon for various different reasons, and witnesses were allowed to sit in court during the hearing. Moreover, this morning Mr Razzaq has complained that the tribunal breached its own procedure in that it had made a direction that only the witnesses already stated could be called and it allowed other witnesses to be called in addition. Fourthly, Mr Razzaq relies on the fact that the Upper Tribunal did not take adequate account of the decision of District Judge Ingram dismissing a bankruptcy petition by the bank against him on 11 August 2009 on the ground that the petition had inaccurately stated that the bank did not hold security.
6. I shall deal with each of these main grounds in turn but before doing so I should mention that Mr Razzaq has this morning at 10.00 am, just before I sat in court, filed a further document entitled "Appellant's Skeleton Argument May 2014" raising a raft of further allegations including breaches of Article 4 of the Human Rights Act, claims concerning ultra vires, breaches of the Misrepresentation Act 1967, further claims concerning Articles 2, 6 and 8 of the Human Rights Act, conflicts of interest, and questions of res judicata and double jeopardy.
7. I did have the opportunity briefly before I sat to read that document and I shall return to its contents in a moment. Before doing so I should deal with the main grounds that did appear in Mr Razzaq's grounds of appeal.
8. The first ground to the effect that Bruce Tyler was not called to give evidence: the Upper Tribunal expressly stated that Mr Tyler's statement had not played a material role in their deliberations (see paragraph 9 of the decision). Accordingly, as I shall explain in a moment, Mr Razzaq has no reason to complain that Mr Tyler was not called.
9. The second ground to the effect that Mr Michael Monitz of Clegg Gifford, despite having given a witness statement, was not called to give evidence: as recorded again in paragraph 9 of the Upper Tribunal's decision, Mr Monitz's evidence was not challenged by Mr Razzaq but, in any event, on the conduct of insurance business, the Upper Tribunal relied instead on the evidence Ms Sheehan, who did appear to give evidence, did give evidence, and was cross-examined by Mr Razzaq (see paragraphs 64 to 66 of the Upper Tribunal's decision).
10. The third ground concerning the Upper Tribunal's procedure as regards witnesses: this is the burden, as I understood Mr Razzaq's original grounds of appeal, of his argument. He makes numerous points in relation to witnesses and the procedures adopted by the tribunal. I regret to have to say, though, that each of these points are, in my judgment, entirely misconceived. There is no reason in a civil case why witnesses should not be permitted to stay in the hearing room before and after giving their evidence. Even if it might have been reasonable to request that certain witnesses should be excluded during controversial evidence of fraud, that is not what happened and Mr Razzaq has not explained how and why the outcome was even arguably affected by theseevents. The suggestion that witnesses were coached by hearing others giving evidence is also, in my judgment, misconceived.
11. Mr Razzaq says that the Upper Tribunal applied the wrong standard of proof and that more oral and documentary evidence was required in order to find the fraud proved against him. I have read the Upper Tribunal's decision very carefully and looked at the background documents and I am entirely satisfied that the Upper Tribunal applied the correct standard and burden of proof to a case where fraud was alleged and in relation to the issues that it had to decide. The Upper Tribunal seems to have acted on a cogent and persuasive evidential foundation.
12. Mr Razzaq seeks to rely on the case of Andrew Jeffrey v The Financial Service Authority [2012] EWCA Civ 178, where the Court of Appeal allowed Mr Jeffrey to issue witness summonses against two police officers to give evidence to the Upper Tribunal on a question of limitation. That was a wholly different circumstance from anything that arises in this case. Mr Razzaq's underlying misunderstanding seems to be that the tribunal ought to compel one side or another to call particular witnesses or to advance its case in a particular way. That is simply not how the system works. A party can rely on whatever evidence it chooses to prove its case. If it fails to call a witness or to rely on some piece of documentary evidence, it suffers the consequences if its case is thereby diminished. But the other side, in this case Mr Razzaq, his option in such a situation is to call that witness himself, which he did not do, no doubt for good reasons because he would not have been able to cross-examine witnesses that he himself called to give evidence.
13. Mr Razzaq places copious reliance in his original grounds of appeal on Article 6 of the European Convention on Human Rights but nothing I have seen or read leads me to believe that there was any breach of Mr Razzaq's right to a fair trial. He seems to have been assisted by the tribunal. They seem to have taken full account of the fact that he was a litigant in person and considered the arguments and the evidence that he put forward carefully in reaching their well-reasoned conclusions.
14. In those circumstances, it seems to me that Mr Razzaq's main complaints about the way the evidence appeared before the tribunal and the way the tribunal reached its conclusion are entirely unfounded.
15. The fourth ground to the effect that the Upper Tribunal did not take adequate account of the decision of District Judge Ingram's order: this decision had nothing whatever to do with what the Upper Tribunal had to decide. Even though it was litigation between the bank and Mr Razzaq, all it decided was that the petition that the bank had brought in bankruptcy against Mr Razzaq should be dismissed on the technical ground that it inaccurately stated that the bank did not hold security. This gives rise to no double jeopardy. It gave rise to no arguable point which could have affected the tribunal's decision.

Other matters

16. In his skeleton, as I have said, Mr Razzaq has raised a raft of other matters that are not covered in his grounds of appeal. In his latest skeleton argument filed this morning, Mr Razzaq has raised a still further raft of matters that are not covered in his grounds of appeal. All these matters are raised in an attempt to show that he has a real prospect of successfully appealing the decision of the Upper Tribunal.
17. I have considered all those matters but cannot see that any of them gives rise to any real prospect of success on the questions actually decided by the Upper Tribunal. Many, if not most, are entirely peripheral or irrelevant. I give one or two examples only in order to attempt to explain the point I am making. Mr Razzaq complains that the tribunal referred to his bankruptcy when in fact his bankruptcy was annulled. That cannot affect the issues decided. Mr Razzaq complains that the tribunal did not refer to the stress from which he suffered, for which of course the court ought, and does, have considerable sympathy, but again that cannot have affected the outcome on the crucial issue of whether the case against him was proved.
18. In addition, Mr Razzaq has sought to allege bias against Mr Ruthven Gemmell because, as he puts it in his argument, he had strong ties with the FSA. In fact it seems Mr Gemmell served on the FSA's Smaller Business Practitioner Panel for a period until 2007 when he became President of the Law Society of Scotland. It does not seem to me that such past activity can possibly give rise to a reasonable apprehension of bias.
19. In addition, before me this morning, Mr Razzaq has sought to rely on a letter from the President of the Chamber, Sir Nicholas Warren, concerning contacts between members of the tribunal and officers of the FSA at various times after the hearing before the tribunal. Nothing in that letter gives rise, in my judgment, to any suspicion or evidence that any of the tribunal members were either biased against Mr Razzaq or acted improperly in making the decision that they did.
20. I cannot, I am afraid, therefore, give Mr Razzaq permission to amend his grounds of appeal to rely on further matters since none of those matters that I have considered has any real prospect of success.

Disposal

21. For the reasons that I have sought shortly to give, I am quite clear that none of Mr Razzaq's arguments has any prospect of success on an appeal. In those circumstances I will dismiss his application for permission to appeal from the decision of the Upper Tribunal.