England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		13 January 2012

1. LORD JUSTICE AIKENS: There is before the court an application by Peter Richard Field (Mr Field) for an extension of time in which to appeal and, if that extension is granted, the appeal of Mr Field against the order of the Solicitors Disciplinary Tribunal (SDT) dated 14 July 2009. Mr Field was admitted a solicitor in 1990 and he has remained on the Roll of Solicitors since then. He had been a partner of the well known City firm of Constant & Constant, which specialised in maritime law. He then went into partnership with Mr Mark Morris. That partnership lasted until some time in 2004. The facts giving rise to the allegations and the orders made against Mr Field by the SDT arise out of the period when he was in partnership with Mr Morris.
2. There were three allegations against Mr Field which were the subject of the findings and orders of the SDT. These were: first, that he had compromised or impaired his good repute as a solicitor or that of the solicitors' profession contrary to Rule 1 of the Solicitors' Practice Rules 1990 and/or Rule 1.06 of the Solicitors' Code of Conduct 2007; secondly, that he had by his conduct compromised or impaired his duty to the court, contrary to Rule 1 of the Solicitors' Practice Rules 1990 and/or Rule 11.02 of the Solicitors' Code of Conduct 2007; and thirdly, that he had failed to deal with the Solicitors' Regulatory Authority (SRA) in an open, prompt and co-operative way in failing to respond substantively to enquiries made of him, contrary to rule 20.03 of the Solicitors' Code of Conduct 2007.
3. The allegations arose because Mr Field had failed to pay fees due to a firm of accountants, Keen Philips, who had done accountancy work for Mr Field and/or his former partnership of Field and Morris, solicitors. The accountancy fees were just over £5,000. When the fees were not paid, the accountants sued Mr Field in the County Court and obtained summary judgment against him for £5,071.55 plus their costs of £5,200. Mr Field appealed the County Court judgment, but his appeal was dismissed by the Court of Appeal on 26 October 2006. Costs of £4,495.20 were ordered against Mr Field in respect of that appeal. On 16 April 2007, Keen Philips' solicitors informed the Solicitors' Regulation Authority ("SRA") that Mr Field had failed to pay the sums as ordered by the County Court, which then, together with the other costs, amounted to £14,766.75 plus accrued interest. Mr Field continued not to pay those sums.
4. The SRA wrote to Mr Field by post and email on various occasions between June 2007 and February 2008. The findings of the SDT record that Mr Field:

"Purported to send explanations on three occasions but failed to attach documents or fax supporting documents despite being advised that he had not sent them and accordingly he failed to deal with the SRA in an open, prompt and co-operative way."

5. The hearing of the SDT in June 2009 had been adjourned from May 2009, at Mr Field's request. It was adjourned in circumstances where he was ordered to file a defence document and written submissions. That was not done. In Mr Field's absence, at the hearing in June 2009 the SDT found that Mr Field was aware of the date of the hearing and that he had voluntarily absented himself knowing that a hearing was to take place.
6. The SDT found that the allegations were proved. The SDT also noted that Mr Field had been before a SDT on a previous occasion in December 2002 in relation to allegations concerning a failure to comply with his professional obligations. On that earlier occasion, the SDT had fined Mr Field £2,500 for failing to comply with conditions imposed on his practising certificate, failing to deliver accountant reports and failing to comply with Adjudicator's decision.
7. As a result of the findings of the SDT following the hearing in June 2009, it imposed on Mr Field a sanction of suspension from practice for six months. The tribunal also made a recommendation that, when the period of suspension came to an end, conditions should be imposed on Mr Field's practising certificate to ensure that he would only be able to work in approved employment. The SDT further ordered that he pay the Law Society's costs, which were fixed at £8,000.
8. The SDT's findings were filed with the Law Society on 3 February 2010. Under the provisions of section 22.6B of Practice Direction 52 Appeals which were applicable at the time, a person wishing to appeal from the SDT to the High Court was obliged to do so within 14 days of the date when the Tribunal's findings were filed with the Law Society. In this case, the findings were filed with the Law Society on 3 February 2010. Mr Field should therefore have filed his Notice of Appeal by 28 February 2010. In fact, the Notice of Appeal was not filed until 15 June 2010.
9. If an extension of time is granted, Mr Field raises five grounds of appeal against the findings of the Tribunal. The Law Society, as respondent to the application and (if granted) to the appeal, opposes both the application for an extension of time and the substance of the appeal.
10. In section 9 of the Notice of Appeal, Mr Field sets out his evidence in support of the extension of time. That is signed by him with a "statement of truth" at the bottom of that page. Mr Field has stated in section 9 of the Notice of Appeal that he received notice of the findings only on 19 February 2010 when he received them under cover of a letter from the Law Society.
11. Mr Field has appeared in person this morning. Mr Field of course accepts that under the rules applicable at the time, any appeal that was to be made to the High Court pursuant to section 49 of the Solicitors Act 1974 must be filed within 14 days after the date on which the Tribunal's statement of its findings was filed with the Law Society in accordance with section 48(1) of the 1974 Act. In section 9 of the Notice of Appeal, Mr Field sought the court's permission to grant an extension of time in which to file the Appeal Notice until 30 June 2010. Within that section at paragraph 5, Mr Field states:

"In the approximately nine days since receipt [of the letter and the findings] I have read the findings and have been advised on the prospects and grounds of appeal. Unfortunately those I would normally rely on are abroad at the moment but nevertheless I have prepared documentation to commence the appeal having satisfied myself that I have a good prospect of success."

12. There is no further explanation in that section as to why there was such a long delay between the date when the notice should have been filed at the latest, ie 28 February 2010, which was apparently the date by which he had satisfied himself that he had good prospects of success and had received advice on the prospects and the grounds of appeal, and the date when the Notice of Appeal was actually filed, viz 15 June 2010.
13. This morning before us, Mr Field has said that during that time he was unwell and that he was not in a position generally to deal with his affairs in the way that he would wish to do. He has also said that he did attempt to file a Notice of Appeal, but that that was in an improper form and it was rejected. Neither of those submissions are the subject of evidence, either in the Notice of Appeal or in any other form such as a witness statement or affidavit.
14. It is the submission of the Law Society, in the form of Miss Carpenter's written submissions, that in circumstances where Mr Field is applying for an extension of time, he is in the position of seeking a relief from the sanction that is normally imposed by failing to comply with the time provisions: viz that the appeal will not be allowed to proceed. Accordingly, the Law Society submits, this court should take account of all the matters that are set out at CPR 3.9(2) and should note the fact that any application for relief from the sanction has to be supported by evidence in accordance with CPR 3.9(3). As I have said, the only evidence in this case is that set out in section 9 of the Notice of Appeal. That was confirmed by Mr Field this morning. As I have also said, there is no further witness statement of Mr Field in support of his application to extend time. Nor does the skeleton argument that has been filed by Mr Field deal with the delay in filing the Notice of Appeal.
15. Miss Carpenter has drawn our attention to the case of Sayers v Clarke Walker (a firm) [2002] 1 WLR 3095 (practice note). In that case, Brooke LJ stated at paragraph 21 that it was appropriate to have regard to the "check list" at CPR 3.9(2) in cases where the court was considering an application for an extension of time for appealing "in a case of any complexity". In my view, this case is potentially of sufficient complexity for it to be appropriate to consider the matters raised by the "check list".
16. We have invited Mr Field to make any submissions he wished to in relation to the various matters that are set out in the "check list" at CPR 3.9(1) and in response to the written submissions that had been served on behalf of the Law Society by Miss Carpenter.
17. I will now consider the matters raised in this "check list". The first is: What are the interests of the administration of justice? It can be said in this, as in almost every case, that those are finely balanced. On the one side there would be finality if the extension were not to be given; on the other side, it is said by Mr Field, that he should be granted an extension of time in order that there can be a just resolution of all the issues that there are between the two parties.
18. The second matter is whether the application for relief has been made promptly. The straightforward answer is that it has not been. Mr Field said that there were reasons for this because of his ill health and because of his attempt to put in a form which was not successful. That is not the subject of evidence and in my view there is no doubt that Mr Field delayed a very considerable length of time before applying for the relief he now seeks.
19. The third matter is whether or not the failure to comply with the rule (ie to file the Notice of Appeal in time) was intentional. On that there is no evidence that it was.
20. The fourth matter is whether there is a good explanation for the failure to apply in time. There is a good explanation for the period up to 28 February 2010. But, in my judgment, there is no good explanation for the delay thereafter. In fact, in my view, there is no satisfactory explanation at all.
21. The fifth factor, which is the extent to which the party in default has complied with other rules, practice directions, court orders and any other pre-action protocol, is said to be relevant by Miss Carpenter. Her submission is that Mr Field had failed to comply with previous orders of the SDT. She also submits that he had failed to comply with orders of this court which were made in June 2011. Mr Field responds that he did not intentionally disregard the order of the Tribunal that was made in May 2009 to which I have already referred. He says, furthermore, that the reason he did not appear at the SDT hearing was that he got the dates muddled up.
22. The sixth factor, which is whether the delay was caused by the applicant or his legal representative, is relevant. Mr Field accepts that he has represented himself throughout. He is, of course, a solicitor and in my judgment I must assume that he knows the rules and that he knows that they are there to be complied with and not broken.
23. The seventh factor is whether the trial date or the likely trial date can still be met if the relief is granted, is not strictly in point. It is, however, fair to say, and Mr Field accepted this, that there has been considerable delay in bringing on this hearing which has been more the fault of Mr Field than that of the Law Society.
24. The eighth factor is: what is the effect of the failure to comply with the rules on each party. For Mr Field, it has meant that he has not promptly pursued his appeal; for the Law Society, it has meant that this stale case remains yet unfinished more than two years after the SDT made its findings.
25. The last factor in the "check list" is: what will the effect be of granting relief on each party. For the Law Society, it would mean that it will have to deal with the merits of the grounds raised by Mr Field; for him, it would mean that he has the chance to argue those. However, I have looked at those grounds and I think I am entitled to say, without having heard argument from either side on the grounds of the substantive appeal, that they are not self-evidently strong grounds, in particular the last three, which are unsupported by any evidence whatsoever, let alone any application to adduce fresh evidence before the court on appeal, with all the difficulties that such an application has.
26. This morning, Mr Field, in support of his application, gave us a clip of papers which concern the attempts that he has made to alert the City of London police to what he says were criminal activities on the part of his former partner in the course of the partnership. The clip consists of a letter dated 16 June 2009 from solicitors acting at the time for the Solicitors Regulation Authority to Mr Robertson, a detective in the Economic Crime Department of the City of London Police, and the response to that letter, which is from the City of London Police, and dated 25 June 2009. There are also some manuscript notes of Mr Robertson and a further email clip from June 2010. Lastly, there is a witness statement of Mr Wade, which was filed in the Croydon County Court in the bankruptcy proceedings which were instituted by the Law Society following the SDT hearing.
27. Mr Field submits that these documents demonstrate that he had taken active steps to alert the City of London police to the allegations which he was making. They do show that that was being done in 2009 and that this was being pursued in 2010, but in my judgment they are not evidence of any activity before that time. Mr Field says that he was in touch with the police from an early date in 2005. We have no evidence before the court today in that respect.
28. Mr Field has also referred to his medical condition from the time before the SDT hearing in June 2009 up until today. There is some medical evidence as to his reason for not appearing at hearings of this court following the filing of the Notice of Appeal in June 2010. There is no medical evidence as to the medical condition of Mr Field during the period February to June 2010. Nor is there any evidence about his medical condition prior to the SDT hearing.
29. That is the state of the evidence. In all the circumstances of this case, I have concluded that there should not be an extension of time in which to permit Mr Field to appeal the findings of the SDT. I have considered very carefully all the factors which are set out in part 3.9(2). All of those considerations lead me to the firm conclusion that the court's discretion to extend time in this case should not be exercised. This litigation must finish, and the interests of justice fall firmly, in my view, on the side of it finishing now. I would therefore refuse the extension of time, and in those circumstances there would be no appeal.
30. MR JUSTICE MADDISON: I also conclude, for the reasons given by my Lord, Aikens LJ, that Mr Field has failed to show sufficient grounds to justify an extension of time of the considerable length sought. I too would therefore refuse the application for such an extension.
31. MISS CARPENTER: Thank you, my Lord. I have an application for costs.
32. LORD JUSTICE AIKENS: Has Mr Field been made aware of this?
33. MISS CARPENTER: This was sent to him by email yesterday.
34. LORD JUSTICE AIKENS: Sent by email? Mr Field, have you received any communication about costs?
35. MR FIELD: I have done, my Lord.
36. LORD JUSTICE AIKENS: Have you had an opportunity to consider it?
37. MR FIELD: I haven't, really. I was very ill overnight and I was coughing up blood this morning.
38. LORD JUSTICE AIKENS: Do you want another copy? I think Miss Carpenter has another copy.

(Handed).

It is a very large sum, Miss Carpenter.

39. MISS CARPENTER: This is the costs of the entire appeal, except for the hearing on 24 June which has already been ordered, which was in a small amount, less than £1,000. It is slightly higher than you might expect because you might recall that this appeal was adjourned from October 2011, so it has incurred two attendances. So this statement of costs includes both that adjourned hearing, for which costs were reserved of the last occasion, and this hearing today. So, for example, fee for hearing for me is actually my fee for both hearings, the October 2011 hearing, which did not take place, and the hearing today.
40. LORD JUSTICE AIKENS: I see.
41. MISS CARPENTER: So that hopefully explains that.
42. LORD JUSTICE AIKENS: Well, the first question is whether or not Mr Field accepts that he is liable for costs at all.
43. Mr Field, what do you have to say about that?
44. MR FIELD: In the circumstances where time has not been extended, I do not see how I can argue against it.
45. LORD JUSTICE AIKENS: Sorry?
46. MR FIELD: I do not see how I can argue against it in the circumstances where time has not been extended.
47. LORD JUSTICE AIKENS: What about the figures?
48. MR FIELD: I think they are enormous, absolutely enormous, and I don't see how the solicitor and counsel turning up on one occasion where it was (Inaudible), in fact it was fought, the adjournment when in fact that could have been saved, I don't see why such an enormous figure results. But --
49. LORD JUSTICE AIKENS: There are two issues, are there not, generally of this kind of point. The first is the hourly rates. Perhaps there are three points. The second is who has been doing the work, whether it is the Grade A solicitor or the Grade B or C solicitor, and the third is how long has been taken to do the various items of work.
50. Now, there are two options, as I am sure you appreciate, Mr Field. We can either attempt to do a summary assessment now or we can say no, it must go for a detailed assessment. If it goes to a detailed assessment, obviously you have the opportunity to agree it without ever getting a detailed assessment, as I am sure I do not need to tell you. But if it is disputed and there is a detailed assessment inevitably even more costs arise. So what is your submission as to how we should deal with this? Plainly, Miss Carpenter and the Law Society want us to make a summary assessment.
51. MISS CARPENTER: I am five years out of date.
52. LORD JUSTICE AIKENS: Well, the position is as I have outlined.
53. MR FIELD: I do not see enough date detail.
54. LORD JUSTICE AIKENS: Sorry?
55. MR FIELD: I don't see enough detail in the schedule of costs as to what actually has been done.
56. LORD JUSTICE AIKENS: It is not a detailed narrative, no. You have a summary of the work in terms of hours and in terms of which solicitor has done it and what their hourly rate is.
57. MR FIELD: I would have thought for such a large sum it would have warranted a breakdown of the detail of each charge, because there is not enough information in this for me to --
58. LORD JUSTICE AIKENS: If you go down that route, as I say, you face the prospect of yet even more costs being incurred which may end up at your door.
59. MR FIELD: Indeed, my Lord.
60. LORD JUSTICE AIKENS: If we order a detailed assessment, it is the usual practice nowadays for the court to stipulate that there should be a payment of costs on account, which is normally around about 50 per cent of the total claimed, bearing in mind that this document is signed by responsible solicitors who have confirmed that the costs "do not exceed the costs which the party is liable to pay in respect of the work which this statement covers," et cetera. So in other words they are assuring the court as officers of the court that this is all genuine stuff. Of course, that does not mean to say it will not get knocked down one way or another on an assessment. But as I understand it, your submission to us is this is sufficiently large that it should go off to detailed assessment and you take the consequences that that means we will want to make an interim order for costs.
61. MR FIELD: I think with a bit more detail then it may be possible to agree it, but it's --
62. LORD JUSTICE AIKENS: That, I hope, could be supplied.
63. Miss Carpenter, you see the position Mr Field is in. He may well be able to agree it or it may well be capable of agreement, but feels, and I think with some justification, that it needs more explanation than just the summary here. How long could it take you to provide the more detailed narrative that is obviously always kept by solicitors?
64. MISS CARPENTER: Do you mean to provide to the court or to Mr Field?
65. LORD JUSTICE AIKENS: No, I mean to provide Mr Field with it.
66. MISS CARPENTER: In order to try and agree?
67. LORD JUSTICE AIKENS: Yes.
68. MISS CARPENTER: My solicitor suggested a week.
69. LORD JUSTICE AIKENS: In seven days? All right. Mr Field?
70. MR FIELD: (Nods head).
71. LORD JUSTICE AIKENS: Then it is up to you either to agree it or not, but the threat hangs over you that if it is not agreed it goes to detailed assessment with all the possible cost consequences.
72. MR FIELD: My Lord, I am not into fighting lost causes, so I will do my best to pay it.
73. LORD JUSTICE AIKENS: Well, it will be with you in seven days' time. Meanwhile, we make an order for interim payment, Miss Carpenter, of £10,000.
74. MISS CARPENTER: Thank you.
75. LORD JUSTICE AIKENS: Within 28 days is the normal order, these days, Mr Field. Yes?
76. MR FIELD: My Lord, could I make a request as well. I have undertaken to the Croydon County Court that I will provide a transcript of the decision in this case. I wonder if that could be ordered.
77. LORD JUSTICE AIKENS: There is no reason why a transcript should not be produced, but you are not asking for it to be produced at public expense?
78. MR FIELD: No.
79. LORD JUSTICE AIKENS: A transcript will be provided. Obviously we will have to correct our drafts first and then it will be provided to you.
80. MR FIELD: Thank you, my Lord.
81. LORD JUSTICE AIKENS: Anything else Miss Carpenter, Mr Field?
82. MISS CARPENTER: (Inaudible) the Law Society provide more detailed costs analysis within seven days, and if it is not agreed by Mr Field, say within a further time period, it goes to detailed assessment.
83. LORD JUSTICE AIKENS: Yes. I think it would be sensible to make a specific order to that effect. We suggest, Mr Field, that the order provide that you have three weeks in which to agree the costs figure before the detailed assessment process starts. Obviously, even if you cannot agree it, then it may be capable of agreement thereafter, but the failure to agree after three weeks would be the sort of trigger for the inevitable costs clock to start running again. So 21 days. If there is no agreement within 21 days of receipt by Mr Field of the detailed breakdown of costs then the matter to be sent for detailed assessment.
84. MISS CARPENTER: Would the court like me to draw up the order?
85. LORD JUSTICE AIKENS: No, the court will do it.
86. MISS CARPENTER: Thank you.
87. LORD JUSTICE AIKENS: Thank you very much indeed.