England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		6th October 2010

1. THE DEPUTY JUDGE: Yes, good morning Mr Otobo.
2. THE CLAIMANT: Good morning my Lord. I want to apologise for my lateness now. I've got a young family, you know, and I live in Slough. We had a transport difficulty this morning on the train so I'm sincerely, you know, sorry for being late this morning. I apologise.
3. THE DEPUTY JUDGE: Well Mr Otobo I thought something was amiss. Although you have a history of not turning up, I accept your apology today and I put your case back in order that you could attend.
4. THE CLAIMANT: I'm grateful my Lord. First of all I want to find out if my Lord was the same judge who dealt with the case of Otobo v The Law Society at the Employment Tribunal. I have here HHJ McMullen QC.
5. THE DEPUTY JUDGE: That is me, yes.
6. THE CLAIMANT: If I may (Same Handed)
7. THE DEPUTY JUDGE: Thank you. That is me.
8. THE CLAIMANT: Thank you my Lord. I did not know that you were, you know, still the same judge to handle this matter until very late, you know, yesterday. If that is the case I will request his Lordship to recuse himself from this case.
9. THE DEPUTY JUDGE: What has happened Mr Otobo? I made an order on paper giving directions and I do not think I have seen it since, have I?
10. THE CLAIMANT: That is your order my Lord.
11. THE DEPUTY JUDGE: I do not think I have seen your case since. I stayed the appeal and indicated that material should be produced in accordance with the Practice Direction on allegations of bias and I do not think this has come before me again, has it?
12. THE CLAIMANT: Before we go further my Lord, I want to find out if the recording system in this court is functioning well, because of what happened before Judge Warren between me and the defendants. I want to find out if the recording system is working in the first place. Something funny happened since my, you know--
13. THE DEPUTY JUDGE: Just pause a moment.
14. THE CLAIMANT: I want to find out if the recording system is working.
15. THE DEPUTY JUDGE: Is the recording system working, Madam? It is. Right. Do not worry Mr Otobo, that is the answer to your question, it is working today.
16. THE CLAIMANT: My Lord, this order was made having looked at the documents and papers before you.
17. THE DEPUTY JUDGE: Yes.
18. THE CLAIMANT: Apart from myself many other petitioners have described this order as very unfavourable to me, in the light of the documents before you, that this order ought not to be and that the defendants will have -- they have a defence and for his Lordship to make this order, the petitioners in this profession feel the order speaks volumes. So in the light of this order, I'm asking my Lord to recuse himself from this case, because this case is so sensitive. That's one. Two, so I want to find out the position of my Lord with regard to this oral request for you to recuse yourself.
19. THE DEPUTY JUDGE: Yes. What happened after my order? Did you comply with the order?
20. THE CLAIMANT: The fact that this order, according to many professionals, ought not to have been made, at this point in time the defendants should have had their claim, you know, thrown out because it was an abuse of process, they were committing fraud on the court. As you will discover, in the particulars of claim before you, which is pending at the High Court now, it is a sad state in the history of the legal system that the defendants have been getting away with murder for too long.
21. THE DEPUTY JUDGE: Mr Otobo I will ask you the question again. Have you complied with the order I made?
22. THE CLAIMANT: Well, I cannot recollect, now that I'm sure, I have, I have to go through my record to see what it is. Some of the decisions here were linked, you know, pending matter at the Court of Appeal. So the bottom line is this my Lord, I'm asking you to recuse yourself in the interests of justice please.
23. THE DEPUTY JUDGE: All right, thank you very much. Are there any other applications?
24. THE CLAIMANT: I want to hear your position on this.
25. THE DEPUTY JUDGE: This is your day in court. Give me an agenda of the issues. There are three applications. There is the recusal application. Is there anything else?
26. THE CLAIMANT: If my Lord will recuse himself from this case, therefore, other matters will have to be dealt with by another judge. Because to allow you to proceed, to make orders or directions on these other matters might prejudice the case. So in the interests of justice it will be proper for my Lord to recuse himself. If my Lord will not recuse himself then I will do not know what to say further.
27. THE DEPUTY JUDGE: Right. Thank you very much.
28. THE DEPUTY JUDGE: On the calling on of the applications this morning Mr Otobo, the claimant, was not present. I dealt with other matters and then adjourned because the history of his applications indicates that there is some irregularity in his attendance and, giving him the benefit of any difficulties, I stood the case out and he turned up at 11.10 with an explanation and an apology which I have accepted.
29. Mr Otobo makes an application. He puts before me an order I made in the Employment Appeal Tribunal on 4th January 2010. It is in respect of his appeal against certain parts of an Employment Tribunal judgment, involving himself, the Law Society and the Solicitors Regulation Authority. On the basis of the simple fact that I have made this order, he asks that I recuse myself. He is supported in his application by his invoking what he describes as many practitioners who feel this order is unfair. He also contends that his present case is so sensitive that it should not be dealt with by me. No other material has been put before me.
30. It is important to consider what the order is which I made. It is made in accordance with the Practice Direction. All appeals to the Employment Appeal Tribunal, in accordance with the Practice Direction and the rules are first sifted by a judge. I cannot recall the precise circumstances of this case and indeed, when I read the papers for today's three applications they were not connected to my earlier order. What the order does is to stay the appeal. It also gives directions for the further conduct because in accordance with the Practice Direction, it is necessary for a claimant, alleging bias against an Employment Tribunal, where ordered to provide particulars and to produce an affidavit including the circumstances. Then the matter is tried at a first instance by the Employment Appeal Tribunal.
31. In accordance with the Practice Direction, a note is given in following terms:

"Unsuccessful pursuit of an allegation of bias or improper conduct may put an appellant or cross appellant at risks of a costs order."

In addition the notes which I made go on:

"(b) Allegations of factual error fall outside the jurisdiction of the EAT.

(c) The usual order where bias is upheld is to set aside the whole judgment. Here the appellant succeeded in various claims under the Act and the Regulations.

(d) Since the claimant is bankrupt he must indicate which remedies he intends to pursue (Grady v Prison Service [2003] IRLR 4714 and Khan v Trident [2004] IRLR 960)."

There was liberty to the parties to apply to vary or discharge the order, since it was made without input from either side.

32. Mr Otobo, in answer to my question, has been unable to say whether he has complied with this direction. I do not know, from what he tells me, whether the appeal remains stayed, but I note that I ordered it to be stayed for 21 days. If he has complied, and he tells me that the matter is unclear, then he will have served an affidavit and this matter will then have gone before either me or another judge to assess this material and then to make orders for the appeal.
33. That then gives the judge a greater set of materials upon which to order that the appeal go forward or that it be the subject of an opinion under rule 3, in which case the case would be over. The reference in my notes to factual errors is bound to be correct. It must have been in the papers before me that factual errors were alleged and of course the jurisdiction of the EAT is to deal with errors of law.
34. I also pointed out that in my experience where bias is upheld, the whole judgment is swept aside and that would mean that the parts where the claimant succeeded would be set aside too. My reference to the bankruptcy provisions comes from two cases which I was involved in and the gist is that certain issues judiciable before an Employment Tribunal and the EAT, are available to a bankrupt such as those which are of a personal nature (discrimination). But others, simple money claims for example, are not. So it was in order to assist the judge when the papers came back to decide what points could go forward and which may not that I ordered those matters. I have had no involvement in Mr Otobo's affairs apart from looking at this matter on appeal in case preparation and I have made no decisions in respect of his case except simply to stay it so that he might have the opportunity to provide the materials necessary for his appeal under the Practice Direction. There is no basis upon which I should recuse myself from dealing with these three applications today.
35. THE CLAIMANT: Then next issue is -- I don't know if you have before you, my Lord, a copy of a letter from Shah Solicitors dated September 2010.
36. THE DEPUTY JUDGE: A letter from which solicitors?
37. THE CLAIMANT: Shah solicitors. Shah.
38. THE DEPUTY JUDGE: I have correspondence from Victor Lissack, Roscoe & Coleman.
39. THE CLAIMANT: Unfortunately I don't have a copy of correspondence.
40. THE DEPUTY JUDGE: Who do they act for?
41. THE CLAIMANT: (Inaudible) I believe The Law Society/Solicitors (inaudible).
42. THE DEPUTY JUDGE: Do you have a copy of that? I do not think I have seen that Mr Otobo but I note that administratively -- sorry, yes, I have that and I note that it was dealt with administratively and the application was refused.
43. THE CLAIMANT: That is the position and I don't believe my Lord has had an opportunity of looking at this document which appears to be kind of chronology, High Court hearing 6/10/2010.
44. THE DEPUTY JUDGE: What am I to do about this application for an adjournment?
45. THE CLAIMANT: The position my Lord is this. If I may take you to the history of this case because some of the facts that are here are incorrect.
46. THE DEPUTY JUDGE: Mr Otobo you recall a little while ago I asked you what the issues were for me today, what the agenda is. Is there an application to adjourn today's proceedings?
47. THE CLAIMANT: It's oral application based on -- I have my solicitors who were acting for me, Shah. I am not in a position to deal with this matter myself and I'm wondering, my Lord, have you had an opportunity of reading the bundle?
48. THE DEPUTY JUDGE: Yes, I have.
49. THE CLAIMANT: Before the court which is about over a hundred pages?
50. THE DEPUTY JUDGE: I think so. I do not know how many pages there are. I have read the paper that I have been given.
51. THE CLAIMANT: Has my Lord had an opportunity of looking at the issuing pertaining to disclosure?
52. THE DEPUTY JUDGE: Well the disclosure is which issue? The disclosure is 13069. That is the claim against the Disciplinary Tribunal. Is that right?
53. THE CLAIMANT: Has my Lord had an opportunity of looking at the two other matters against the Law Society or the Solicitor Disciplinary, 13137.
54. THE DEPUTY JUDGE: In respect of the disclosure matter, that is the number I have just given you and I have your application 22nd of September, written to the Solicitors Regulation Authority. That is the items for disclosure, is it not?
55. THE CLAIMANT: My Lord will look at it on the disclosure issue has begun since 2004. This is why I have said in this letter that what is accurate in the refusal on the part of the Law Society to disclose and the refusal of the Solicitor Disciplinary Tribunal to order them to disclose. Those are issues -- if my Lord were to look at the disclosure letter, it was sent to them on 27th August 2009. The Law Society did not disclose and they made application to the Solicitors Disciplinary Tribunal sometime in September asking them to list the matter for disclosure as a matter of urgency. The Solicitors Disciplinary Tribunal did not list it as requested, they chose to list it for hearing on or about 10 or 4th of November 2009 and there was a full hearing of the substantive case, coming up between 9th and 11th November 2009. My Lord, the reason I'm drawing attention to this chronology is because this is contrary to what counsel QC, Mr Andy Hopper, said that I chose to make a judicial review application very close to the hearing time. But the case is that the request for disclosure hearing before the SDT was made in September and the SDT chose to list it on the 10th or 4th November, very close to the hearing date, 9th. The reason for that is clear: should there be a refusal, as there has happened to be, I wouldn't have the time to make my application for judicial review.
56. In answer to this disclosure I have reported for them to disclose to me, which is the main thing, the fun bit, the insurance of Lloyds & Co to enable to get funding to defend myself. I am not in a position to handle this case. Those are all and other matters to be decided by the Tribunal, but when this matter came up before the Tribunal, on the -- about 10th or 4th November, the Tribunal did not give away a bundle. But nevertheless my position is that they have had my hands and legs tied and they want me to swim at the same time. So, I have been lucky to secure the services of Shah Solicitors who have been doing for me free. Through the assistance a counsel decided to do it for me on pro bono. What counsel did was to write to the Admin -- what my solicitor did was to write to the Administrative Court, to adjourn this matter to the 10th of this month, which is next week or the week after. That is not too difficult to agree on. It is my means of livelihood. I am a family man. I am the one who brought this action. Yet they're objecting to it. Just because they know that I will not be able to equip papers properly and argue my case properly before the High Court. I'm not, you know, an expert in this case. I have left that to my solicitors and they have been able to secure for me the services of the counsel who has agreed to do it pro bono.
57. THE DEPUTY JUDGE: Who is that?
58. THE CLAIMANT: Shah Solicitors contacted a counsel, that is contained in the letter.
59. THE DEPUTY JUDGE: I know. Who is the counsel?
60. THE CLAIMANT: I can't remember his name off heart now.
61. THE DEPUTY JUDGE: Yes.
62. THE CLAIMANT: That is the position and my Lord I sent the letter to you. I sent the fax to both defendants, the Solicitors Disciplinary Tribunal and the Law Society, a copy of the letter is before you, my Lord, dated 22nd September 2010. In that letter -- has my Lord got a copy of the letter?
63. THE DEPUTY JUDGE: Yes.
64. THE CLAIMANT: First of all the one to the Law Society/Solicitors Regulation Authority. As my Lord can see those are my requests.
65. THE DEPUTY JUDGE: Very good. Thank you very much.
66. THE CLAIMANT: There is also another one to the Solicitors Disciplinary Tribunal dated 2nd November 2010.
67. THE DEPUTY JUDGE: Now Mr Otobo, is there anything else you want to say about the adjournment request?
68. THE CLAIMANT: The position today is that serious materials have come to light and it will appear, and I don't know whether my Lord has an opportunity of going through it. These are the claims brought by Baxendale against the two defendants in this case.
69. THE DEPUTY JUDGE: I have not, I know you handed my usher a bundle of documents as I was coming into court.
70. THE CLAIMANT: Let me assist my Lord by taking you to the relevant areas for you to see. If my Lord were to refer to paragraph 89 of the claim, what this claim shows. I let my Lord read it.
71. THE DEPUTY JUDGE: I have read paragraph 89.
72. THE CLAIMANT: If my Lord is to look at it. This is the Solicitors Regulation Authority colluded with the Solicitors Disciplinary Tribunal on how to write a fax that are not there in order to make an appeal to the High Court difficult.
73. THE DEPUTY JUDGE: Mr Otobo who is Paul Baxendale-Walker?
74. THE CLAIMANT: Paul Baxendale-Walker was equally referred to by the defendants, the Law Society in my case on -- I mean on 11th November 2009. Baxendale-Walker was struck out by the SDT and he has an action now against both the SDT and the Law Society.
75. THE DEPUTY JUDGE: Right.
76. THE CLAIMANT: These materials and other materials will be there, put together what argue about that my counsel in their skeleton argument. So my question today -- sorry my Lord, my request today is for this matter to be adjourned to this there be requested my solicitors to enable counsel attend to represent me. There is no prejudice caused to the defendants. They are not even here today. So if they are not here today, what is the guarantee that they will be here at the next hearing? So, it is my case, it is my case, and if I draw your attention, my Lord's attention to something very significant. I was admitted as a solicitor on the 17th April 2001. In about 2001 November I started working at a firm of solicitors called Lloyd & Co. It is very important I take you through this. In the course of this Nigel Lloyd, who was the principal defendant, made complaints of professional misconduct to the Law Society about me. At the same time I complained of professional misconduct of his to the Law Society. The Law Society investigated his complaints and decided to bring me before the Tribunal who then struck me off on 20th November 2006, based on the evidence of Nigel Lloyd.
77. THE DEPUTY JUDGE: Very good. Is there--
78. THE CLAIMANT: It is very important I go through this because it will enable you to have the background and that decision was quashed on appeal by Latham LJ on the 11th June 2008.
79. THE DEPUTY JUDGE: Mr Otobo forgive me, but you are reciting the facts and the chronology and I have read them.
80. THE CLAIMANT: But the position is that those decisions for which I was struck off in 2008 were no longer relied upon in 2009.
81. THE DEPUTY JUDGE: Yes.
82. THE CLAIMANT: I was now for the period of 2006 to 2000... I was struck off based on false evidence.
83. THE DEPUTY JUDGE: Right. Is there anything else you want to say in support of your application for an adjournment of today?
84. THE CLAIMANT: In support of my application what I'm saying this matter should be adjourned to enable my counsel and solicitors a period to argue out my case and put the case in proper order.
85. THE DEPUTY JUDGE: Very good. Thank you very much.
86. THE CLAIMANT: That's what I'm saying.
87. THE DEPUTY JUDGE: Take a seat please.
88. THE CLAIMANT: There is no prejudice caused to the defendants and no equality of arms if I'm not represented.
89. THE DEPUTY JUDGE: Thank you very much.
90. THE DEPUTY JUDGE: I refuse your application Mr Otobo.
91. An application was first made to adjourn these proceedings on 20th September by Shah Solicitors Ltd. The grounds on which it was sought to be adjourned was simply the following. "Counsel who is assisting Mr Otobo on a pro bono basis has other professional commitments." No further material was adduced in respect of that. The matter was dealt with administratively and the application was refused following objections raised by Mr Andrew Hopper QC (Solicitor) who acts on behalf of the Solicitors Disciplinary Tribunal. This is in relation to one of the applications today (13069).
92. He contended that there was a long history of non attendance at substantive hearings and of adjournment applications. He contended that since notice was given of today's hearing on 12th July, there was ample time to arrange representation. Counsel had not been instructed until the last minute and there was no indication as to what counsel's other commitments are. Mr Hopper QC says unless those commitments are to a court senior to the Administrative Court these proceedings should take precedence.
93. He also wrote in respect of the other two applications, and, as he said, incorporated information about that. It seems that the material therefore was considered administratively by the office here and the adjournment was refused. There was no further application or appeal from that. Today the application is renewed in person by Mr Otobo. He raises the matter which Shah Solicitors raised. He was unable to tell me who the counsel is who is engaged in other professional commitments or why he is not able to be here today. But he also puts before me, an amended claim form issued by Paul Baxendale-Walker against nine defendants, one of which is relevant, that is the Solicitors Disciplinary Tribunal. It was issued on 4th June 2010. The particular reference is to paragraph 89, which indicates that in addition to the Solicitors Disciplinary Tribunal, the eighth defendant in the proceedings is the chairman of the Tribunal, Mr Isaac. It is said therefore that there should be an opportunity to put this matter before the court.
94. In my judgment, this is not directly relevant to the three applications which are to be made this morning, and I see no basis on that account not to go ahead. Mr Otobo says the defendants are not prejudiced by any adjournment but it seems to me they have involved themselves in correspondence leading up to this matter. They have, without disrespect to the court, indicated that it was not their intention to attend unless the court wished it. Court time has been set aside for this and Mr Otobo is highly experienced in litigation and I have no difficulty in understanding the points he is to make in his applications this morning. It is in accordance with the overriding objective that these three applications be dealt with today. So I will now hear Mr Otobo on the applications.
95. THE CLAIMANT: My Lord. One more request, if a transcript of these proceedings, you know, to be provided at public expense.
96. THE DEPUTY JUDGE: I will deal with that at the end Mr Otobo. Now, do you want to make the applications?
97. THE CLAIMANT: What application?
98. THE DEPUTY JUDGE: There are three renewed applications.
99. THE CLAIMANT: My position is that I'm not in a position. I have, you know, set up my case and the position is that if you are not allowing this application, my oral request to adjourn, then I wish to appeal your decision.
100. THE DEPUTY JUDGE: Very well.
101. THE DEPUTY JUDGE: An application has been made for permission to appeal my decision. I refuse this application. No separate grounds have been given and as Mr Otobo knows it is necessary when making an application for permission to appeal to give grounds. I will however assume that the arguments he addressed to me on the application are the ones he wishes to give to the Court of Appeal.
102. In my judgment there is no reasonable prospect of success and no compelling reason why the exercise of discretion today should take up the time of the Court of Appeal.
103. Now Mr Otobo do you want to proceed?
104. THE CLAIMANT: My Lord, I have said that my papers are not in order and most of the papers are with my solicitors. Therefore I do not want to make a representation that will go down on record as having been made, read up. I will ask my Lord again to reconsider his position now. My solicitors have gone in the requesting the 18th October which is about next week. That is not too far. I'm saying again the respondents or the defendants are not produced in any way. They didn't turn up today. There is no reason they will turn up in the future. It is my application. I have left my defence to do the job. They are prepared to come to court and argue my case and put materials properly to argue. I have stated here this judicial review was pending before the Tribunal went on to hear whatever to -- I mean to entertain the substantive hearing. This judicial review ought to be dealt with. My position, that my solicitors and counsel will argue before the High Court that the whole matter should be, you know, struck out in its entirety.
105. THE DEPUTY JUDGE: Yes.
106. THE CLAIMANT: So my position again is that I wish to appeal your decision to refuse to adjourn and I cannot proceed to argue anything until that appeal has been dealt with because my solicitor will have to come here.
107. THE DEPUTY JUDGE: Following my refusal of permission a further application has been made by Mr Otobo to reconsider my decision. I have carefully reconsidered my decision but no new circumstances have been put before me by Mr Otobo. I have paid careful attention to the protracted history of this case and to the way in which the case has been dealt with by judges of this court in the three applications.
108. As I have indicated, the defendants in these cases have taken time to engage in correspondence to assist the court and they have offered to come if necessary. The latest indication from Shah & Co is that these renewed applications will take half-a-day. I see no compelling reason why I should revisit the refusal to adjourn. So the decision stands.
109. Mr Otobo, do you want say anything more?
110. THE CLAIMANT: Except for a request for transcript of today's proceeding, you know, at public expense.
111. THE DEPUTY JUDGE: All right, thank you very much.
112. THE DEPUTY JUDGE: In the light of my rulings Mr Otobo decided he would not present any arguments in support of these three applications. It seems to me therefore that each of the three decisions in the cases which are before me will affect my judgment. These are in respect of 13069, against the Solicitors Disciplinary Tribunal. This is of Mr James Goudie QC in relation to a disclosure application, I agree with his decision and have heard nothing new in the papers or before this morning to indicate why this application should succeed.
113. The basis of the judicial review sought is that there was a breach of Article 6. The orders were contrary to judgments of the Court of Appeal in R v AM Cameroon v IAT [2008] EWCA Civ 100. The order was contrary to the EU Directive on equal treatment and contrary to the EU charter on equality before the law.
114. The second is 13137, which is against the Solicitors Regulation Authority. In this case an injunction taking the form of interim relief was refused by Burton J.
115. The third is 13671, the claim against the Law Society and the Solicitors Regulation Authority. This relates to the claimant's appeal under section 49 of the Solicitors Act. That is where the remedy lies and not in these proceedings. I agree again with Mr James Goudie QC in his account refusing permission.
116. This may sound a gloomy prospect for Mr Otobo and he was anxious to remind me of the decision in his favour of Latham LJ and Nelson J in his previous appeal under section 49 of the Solicitors Act 1974 on the 11th June 2008. That had the effect of starting the procedure again, and as I understand with slightly different allegations. Nevertheless the hearing went ahead. Burton J refused to injunct the proceedings and that is now water under the bridge. When it did hear the proceedings on 11th November 2009, the claimant was ordered to be struck off the roll and to pay costs of £20,000.
117. There appears to have been no direct attention given to the extended restraint order in place and I will not consider that at the moment, since none of the three refusals has dealt with that aspect and nor will I, in the absence of any formal submissions by the defendants.
118. In my judgment, there is no arguable case in respect of any of the three applications and I will refuse permission.
119. Mr Otobo asks for a transcript at public expense and he may have one. I give that because he was on his feet today and not able to take a careful note.
120. The applications are refused. Thank you very much Mr Otobo.
121. THE DEPUTY JUDGE: You can have the Shah letter back, 22nd November.
122. THE CLAIMANT: No, of September.
123. THE DEPUTY JUDGE: 22nd September, yes.
124. THE CLAIMANT: There are two.
125. THE DEPUTY JUDGE: There are. I can give you those back and I am giving you back the amended claim form as well. Do you want a copy of my order in the EAT as well?
126. THE CLAIMANT: Yes.
127. THE DEPUTY JUDGE: That is the one you gave me this morning. So Mr Otobo, I have handed you back the material that you gave me today, so you can keep it safely.