QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen (oao Michael Henry)
|- and -
|The Bar Standards Board
Mr Richard Wilkins (instructed by BLM Law) for the Defendant
Hearing dates: 13 September 2016
Crown Copyright ©
Mrs Justice Whipple:
The decision under challenge
"Your complaints 1-6 are in substance that [each of the two barristers] 'falsely represented to the judge that the administrators of GLE had consented to the terms of the draft order'. If the barrister did not misrepresent the position then no breach of the code of conduct can have taken place. You were not acting for the administrators and nor was the barrister. The BSB contacted the administrators of GLE. They have never complained that their position was misrepresented to the court and they were provided with a copy of the order dated 30 July 2012 after it was made. They commented on the Order (through their solicitors Charles Russell LLP) by letter dated 12 August 2012 to Wiggin LLP and did not say their position was misrepresented in the Order or that they had not consented to its terms. In any event they have made no application to set aside or vary the order in the subsequent three years on the basis that they had not consented to it or for any other reason. In those circumstances the committee concluded that there was no sufficient evidence that the barrister made false statements to the court and, accordingly, no sufficient evidence that his conduct constituted a breach of paragraph 301(a) of the Code of Conduct (8th Edition)."
Extension of Time for Grounds
"1. Proceedings by way of judicial review must be brought promptly and in any event within three months, three months is a long-stop limit: delay within that period gives grounds in itself for refusing permission. It is thus incumbent on the litigant whose claim is not submitted until the last day of that period to use the time within that period to best advantage so as to avoid or minimise further delay, and if for good reason that is impossible to act promptly thereafter. I do not consider that he has done either, and though the extension sought is not long, decline to give it."
"2. The grounds as lodged by 21 April 2016 are hopelessly unspecific: I note, too, that the three grounds then relied on are materially different from those for which an extension of time is sought, such that this therefore amounts to an attempt to put in grounds for review almost four months after a decision, and not a mere detailed clarification of grounds that already were advanced.
3. The grounds as originally advanced do not disclose any error of law, since they are so lacking in particularity."
Grounds for seeking JR
"As you are aware, the Joint Administrators consented to the continuation of the proceedings pursuant to paragraph 43(6)(a) of Schedule B1 to the Insolvency Act 1986 (Schedule B1) as confirmed in your letter dated 28 May 2012. This was mainly given the fact that the trial was due to start that week and the Joint Administrators wished to assist QD to the extent that they could. It appears that the provisions of the Order appear to allow for the enforcement of QD's security. As you will be aware under paragraph 43(2) of Schedule B1 no step may be taken to enforce security over the company's property with [sic] leave of the court or the consent of the administrators. In this instance there was no request for consent and there has not been an application to Court (as far as we are aware) for consent (in which case the court would be obliged to undertake the 'balancing exercise' in accordance with the provisions of Re Atlantic Computers Systems PLC  Ch 505). In light of this, we would be grateful if you would let us have your thoughts in relation to this."
"In summary, it seems … that the Order (properly construed) quantifies QD's claim but no more..."
Civil Restraint Order ("CRO")
a) CO/2272/2014: this was Mr Henry's first judicial review. It was struck out by the Administrative Court (Turner J) after the BSB had undertaken to reopen his original complaints. The Claimant applied to the Court of Appeal for permission to appeal against the Administrative Court's strike out. The Court of Appeal (Lewison LJ) refused that application dismissing it as totally without merit (C1/2014/3537).
b) CO/5689/2014: this was a second judicial review, in which Mr Henry challenged the BSB's undertaking to reopen the complaints. Permission for judicial review was refused (Dove J) and the application was certified as being totally without merit.
c) CO/4690/2014: this was another judicial review by which the Claimant challenged the Solicitors Regulation Authority's refusal to pursue the complaint against Wiggins LLP in relation to the 2012 action. Permission was refused (Patterson J) and she said the application was totally without merit.
d) CO/6219/2015: this was the Claimant's challenge to the BSB's decision to dismiss all the Claimants complaints, once the investigation had been reopened, except 1-6 of 337. The BSB wished to investigate complaints 1-6 further. Permission was refused on the papers (Gilbart J) and the application was certified as totally without merit. I am told that the Claimant has applied to the Court of Appeal for permission to appeal against that refusal (pending under reference number C1/2016/1093).
"I have no intention, and am unlikely ever to have the intention, of conducting any kind of proceedings other than through representation by Counsel. I would note that the four appeals/applications dismissed as being totally without merit by the Judge [ie those listed above] were all matters in which I was not represented by Counsel at the time the appeal/application was made or it was decided to make it. I do not intend to be in that position again."