England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		27 February 2009

Mr Justice Blackburne:

Introduction

1. By an application notice dated 8 September 2008 the claimant, Simon Bailey, seeks an order, either under CPR Part 3.4(2) or under the court's inherent jurisdiction, striking out the defendants' defence, alternatively striking out that part of it which asserts that an agreement was reached on the 23 March 2007 (or that the defendants be debarred from defending the claim in reliance on such an agreement), and that permission be given pursuant to CPR Part 32.7(1) for the first and second defendants, Nigel Wood and Anna Dunford, to be cross-examined. The application is supported by a witness statement of a partner of Shakespeare Putsman ("Putsmans"), the solicitors representing Mr Bailey, which runs to over 100 paragraphs and exhibits documents running to over 140 pages. The grounds relied upon for the relief sought are (1) that the defendants have made and permitted to be made false disclosure statements knowingly and without honest belief in their truth, (2) that Mrs Dunford in the course of these proceedings has made a material document and then deliberately destroyed the original version, (3) that Mrs Dunford materially altered a document after the date on which it was made and did so for the purpose of advancing a false case on behalf of the defendants and (4) that the defendants have repeatedly failed to comply with their disclosure obligations. It is claimed by the application that the defendants have thereby interfered with the course of justice and put the fairness of the trial in jeopardy, have rendered any judgment that may be entered in their favour unsafe and further proceedings unsatisfactory, and have thereby prevented the court from doing justice. Towards the end of his opening submissions on behalf of Mr Bailey, Mr Paul Marshall indicated that he was only relying on the first of the grounds as against Mrs Dunford.

The underlying dispute

2. The application, which is resisted in every respect by the defendants, arises out a partnership dispute involving a firm of Birmingham solicitors called The Wilkes Partnership ("TWP"). From 1 May 2001 to 30 April 2007 Mr Bailey was an equity partner in TWP, having joined the firm (I assume in a salaried capacity) on 31 March 1998. As I understood it, Mr Paul Marshall contended that Mr Bailey is or may still be a partner of TWP. It is not in dispute, however, that since 1 May 2008 Mr Bailey has worked full time as a salaried partner in another firm called Tuckers.
3. Mr Bailey contends that it was agreed when he joined TWP, indeed that it was the express purpose of his agreement to become a partner in the firm, that he would have responsibility for heading up, supervising and developing the firm's criminal law practice which had earlier been in decline. It is common ground that Mr Bailey did head up the firm's criminal law practice and that by March/April 2007 that department ("the criminal department"), in addition to himself, had a salaried partner (a Mr Alex Walsh-Atkins) and 17 other employees. The criminal department was known as "Carvers".
4. This litigation is about the circumstances in which Mr Bailey, together with the others in his department, transferred to Tuckers with effect from 1 May 2007. Mr Bailey contends that by a series of events culminating in the decision of the defendants made at an equity partners' meeting on 23 March 2007 he had no option but to transfer and that, in law, the partnership between him and the other equity partners, who are the defendants, was repudiated. He contends that he accepted the repudiation so as to entitle him to compensation. He therefore claims damages. In the alternative, for I think that it is (and can only be) an alternative, he contends that the partnership was dissolved by notice of dissolution given by him to each of his co-partners on 24 April 2007, alternatively that the court should order the partnership to be dissolved. Accordingly, Mr Bailey seeks a winding up of the partnership's affairs and other consequential relief.
5. Mr Bailey's claim is defended. In particular, the defendants contend that their partnership with Mr Bailey came to an end on 30 April 2007 when, by mutual agreement, he left the practice and thereafter (with effect from 1 May 207) joined Tuckers taking with him the entire criminal department. They accept that he was entitled to an account in accordance with the terms of the partnership deed and say that they have fully accounted to him for what he was due by paying him (by 14 August 2007) £257,420 and by allowing him to retain a car valued at £24,500. They contend that this agreed parting of the ways came about as a result of an agreement made on 23 March 2007 between Mr Bailey and Mrs Dunford (TWP's managing partner) and its implementation on 30 April/1 May 2007 when Mr Bailey and the criminal department transferred to Tuckers, alternatively as a result of a combination of that agreement and the parties' subsequent conduct (consisting of a number of pleaded communications between the defendants, or employees of TWP, on the one hand and Mr Bailey, representatives of Tuckers and the Legal Services Commission on the other) culminating in the transfer to Tuckers.
6. The essence of Mr Bailey's case is, as I have indicated, that, effectively, he had no choice but to leave TWP and that this was in consequence of the firm's decision, which he opposed, reached at the partners' meeting early on 23 March 2007 but adumbrated, if not made inevitable, by comments made and positions adopted by the defendants (or some of them) starting in February 2007 (if not earlier) that the criminal department which he headed would have to close. The context of this was that, as I understand to be common ground, the criminal department in the nine months to 31 January 2007 had made a net profit of only £8,000, a figure which made no allowance for the profit shares of Mr Walsh-Atkins and Mr Bailey. The defendants' position about this was that, viewed against its historic performance, the continued existence of the criminal department was and would continue to be hugely detrimental to the overall profitability of the firm and therefore that the firm should not continue to invest in criminal work. Mr Bailey, by contrast, was of the view that the department's fortunes would improve and that it could be made profitable once again. He points to the fact that, at one stage at least, the department had been very profitable. An important factor in all of this was a contract between the firm and Legal Services Commission ("the LSC") whereby the LSC funded a large proportion of the work of the criminal department. By March/April 2007 the contract yielded about £750,000 of the firm's annual income and was essential to the continued operation of the criminal department. At all events the firm's decision, opposed by Mr Bailey, to give notice to the LSC terminating the firm's contract with that organisation carried with it a decision to terminate the criminal department. That crystallised what he asserts was the defendants' repudiation of his partnership with them. He contends that his action in moving to Tuckers was by way of mitigation of his loss resulting from the defendants' repudiatory conduct.

The wider background

7. In order to set in context the application which is now before me I must set out some of the wider background to the dispute.
8. It appears that, viewing as inevitable the decision of his co-partners to terminate the firm's criminal practice (even though, formally, the decision to do so by cancelling the LSC contract was not resolved upon until, as I have mentioned, the partners' meeting early on 23 March 2007), Mr Bailey had begun in early 2007 to look around to see if he could join another suitable firm and take with him some or all of the others in TWP's criminal department.
9. To this end he entered into negotiations with representatives of Tuckers, in particular a Mr Brian Craig who was Tuckers' business manager and also Mr James Turner, a partner in that firm. It appears that contact had been made by them with Mr Bailey by mid-February 2007. Tuckers were interested in acquiring the criminal department of TWP provided Mr Bailey and Mr Walsh-Atkins joined Tuckers as well. Matters progressed to a point where two of the partners of Tuckers actually visited Carvers' premises, apparently without the knowledge of the defendants. According to the note which Mr Craig prepared of a meeting held on 20 February 2007 involving himself, two of his Tuckers' colleagues, Mr Bailey and Mr Walsh-Atkins, the discussion had progressed to matters such as the TUPE regulations, who was in the criminal department, existing levels of remuneration within the department, what notice Mr Bailey and Mr Walsh-Atkins would have to give TWP and how the files (of the department) would be transferred.
10. On 21 March 2007 there was a meeting between Mr Bailey, Mr Walsh-Atkins, Mr Craig and Mr Turner. According to a witness statement of Mr Craig (whom Mr Bailey intends calling at the trial) the meeting "sought to iron out the respective roles of each of those present as well as to consider what issues would arise in the event of Tuckers taking Carvers over and/or the ramifications of [TWP] giving notice on their criminal contract [with the LSC] … From Tuckers' point of view we were seeking to take the whole department [of TWP] as we were looking for volume… At this stage no approach had been made to Carvers … In any event Simon [Bailey] felt it appropriate that he raised this development in the first instant [sic] and he made it clear that there was shortly to be a meeting with Nigel Wood when his position would be clear." In his second witness statement Mr Turner (whom Mr Bailey also intends calling at the trial) has felt able to say of that meeting that it went "extremely well" and that "it was resolved at this meeting that the departments would merge".
11. It is plain therefore that agreement on Tuckers' take-over of TWP's criminal department had - as between Tuckers and Mr Bailey - reached a fairly advanced stage. What was absent was TWP's consent to all of this but, from my reading of the papers, Tuckers and Mr Bailey did not envisage any particular difficulty on that score. Nor was any difficulty in fact encountered.
12. The fact that Mr Bailey was having these discussions with representatives of Tuckers was not divulged by Mr Bailey to his co-partners. On the contrary, according to his own evidence, Mr Bailey decided, on the occasion of the equity partners' meeting of TWP held on 23 March, to "say nothing at this stage". According to Mr Bailey, the partners' meeting held that day discussed at length the future of the criminal department. A vote was ultimately taken on a resolution that TWP should cancel the LSC contract. The resolution was carried with only Mr Bailey voting against. Mr Bailey himself records that he was asked at the meeting if he "had anything resolved with any other firm" to which he replied that he had nothing in writing at that stage. The defendants' evidence (including the minutes of that meeting) is consistent with this. According to their defence Mr Bailey informed them that "he had not generated any interest from any other firm and … had no plans for the criminal department". The pleading goes on to allege - and the minutes show - that, when asked by the fifth defendant if he had anywhere to go, Mr Bailey replied "no - I have nowhere to go".
13. It seems clear therefore that Mr Bailey was keeping his cards close to his chest and that he deliberately concealed from his co-partners the discussions he had been having with Tuckers over the previous month. It would be wrong, before the court has had a chance to hear his evidence, to speculate why Mr Bailey chose to behave in this way.
14. It also appears that, in anticipation of problems with his co-partners, Mr Bailey had instructed Shakespeare Putsmans ("Putsmans") another firm of Birmingham solicitors. Either in the expectation that the partners' meeting would resolve to cancel the LSC contract and effectively close down the criminal department, or as a result of Mr Bailey contacting Putsmans after the meeting to report its outcome (when I asked Mr Marshall about this he was not certain which it was: it may well have been a combination of the two) Putsmans drafted a letter to be sent by Mr Bailey to Mr Wood and faxed a copy of it to Mr Bailey shortly after 4:00 pm that afternoon. In the event the letter was not sent. The draft referred to the partners' meeting earlier that day and to the decision to terminate the LSC contract. The draft stated that the decision meant that Mr Bailey was "essentially being forced out of the partnership". It said that he would be looking to TWP for proposals to compensate him for loss arising out of breach of the partnership deed and settlement of his current and capital accounts. It stated that he was doing all he could to find an alternative position "but the market is presently a difficult one". It made no mention of his discussions with Tuckers and the latter's wish to acquire TWP's criminal department, lock, stock and barrel.
15. It further appears that that same day Mr Bailey was in touch with Mr Craig of Tuckers. According to paragraph 74 of Mr Bailey's witness statement he informed Mr Craig of the partners' decision to cancel the LSC contract. He said that Mr Craig "indicated that he would contact the LSC to see whether anything could be done in this regard". He then states:

"Even at this point, there was nothing in writing and nothing formally agreed between us, the criminal department of The Wilkes Partnership and Messrs. Tuckers. It was only a matter agreed in principle."

From Mr Bailey's notes of his conversation with Mr Craig, it is fairly evident that the discussion was on what, in the light of the decision at the TWP equity partners' meeting earlier that day, Mr Bailey should say to his co-partners. Thus, Mr Bailey noted:

"Say being in contact with BC [Mr Craig]… Want confirmation if Wilkes would write to LSC they are transferring …whole business to Tuckers … No deal as yet but is treated in principle subject to BC going through the figures to do over the weekend. Dependent totally letter going to LSC on agreed basis …"

16. Against that background Mr Bailey had his meeting with Mrs Dunford. It was later that same afternoon. In Mr Bailey's own words:

"I confirmed that I had been speaking to Messrs Tuckers. … I said that there may be potential for me joining Tuckers as a partner but there was nothing definite at that stage. It was during that meeting that Anna Dunford said that she would try and get hold of Nigel Wood and find out his whereabouts. She contacted him and confirmed that I had managed to resolve certain things regarding Messrs Tuckers. There was no indication at all by Anna Dunford that she gave her consent that I could leave the partnership, nor indeed did I ask for it. I still took the view notwithstanding what they had done that I had no wish to leave The Wilkes Partnership, but that element of trust that forms the basis of any working relationship had clearly come to an end… In relation to my further discussions with Anna Dunford at that meeting, I said that although we may have a situation whereby Messrs Tuckers had been spoken to, this was only the first part in the stage of things because the second element was of course trying to resolve my financial situation. I told her that I had obviously taken advice in relation to my financial matters and that I wanted to be dealt with properly. Anna Dunford said I would be looked after appropriately and indeed mentioned that the other partners had expressed an interest that I would be looked after. I am not quite sure what was meant by that but I assumed from them to deal with me reasonably concerning my financial affairs."

17. Mrs Dunford's account of the meeting goes rather further. So far as she was concerned - I read from the defence that has been served:

"…The claimant told Anna Dunford that in fact, despite what he had said in the morning at the meeting, he had been in negotiation with Messrs Tuckers who were prepared to take him and the criminal team once he was 'extricated' from The Wilkes Partnership. He said that the defendants should not terminate the LSC contract but instead transfer it to Tuckers. It was agreed that the claimant would leave the Wilkes Partnership on 30^th April in order to join Tuckers. The defendants agreed at the claimant's request not to terminate the LSC contract but to ask the LSC to transfer it to Tuckers."

18. I come a little later to more detail concerned with that meeting.
19. It is common ground that on the following Monday, 26 March, Mrs Dunford spoke, for the first time, to Mr Craig and that, as recorded in an e-mail from Mrs Dunford to Mr Bailey later that afternoon, agreement in principle was reached between her (on behalf of TWP) and Tuckers that Tuckers should take over TWP's criminal department as at 1 May 2007 under the Transfer of Undertaking Regulations and, in particular, that Mr Bailey would become a partner of Tuckers from 1 May 2007. That same day, Mrs Dunford contacted the LSC to say that TWP wished to transfer the entirety of its criminal department to Tuckers with effect from 1 May. She informed Mr Craig of this. She followed up her conversation with the LSC by sending the Commission a letter "to confirm that we have reached an agreement with Tuckers Solicitors to transfer to them the whole business of Carvers Criminal Department together with all files and staff members". The letter stated that TWP "would cease to act on any criminal matters on the 30 April next and Tuckers will take over the files from the 1 May".
20. Three days later, on the Thursday of that week, Mr Wood announced to staff at TWP that the criminal team would be leaving at the end of the financial year (ie at the end of April) to join Tuckers.
21. Two working days later, on 2 April which was at the beginning of the following week, Mr Bailey wrote to Mrs Dunford to complain that she and the other equity partners were "effectively expelling me from the partnership", that this amounted to a breach of contract and that, among other financial matters that needed sorting out, he was entitled to be compensated for his loss arising out of the breach. He stated that although he could not expect to receive compensation until he retired he expected much more than his remuneration shortfall on joining Tuckers measured over only a few months. I take that to be a reference to discussions the previous week between him and Mr Wood. (In the course of his submissions to me, Mr Marshall mentioned a compensation figure which Mr Bailey was looking to recover of around £500,000.) The letter referred to his action in joining Tuckers as mitigation of his loss. The defendants, through Mr Wood, replied to deny Mr Bailey's claim.
22. On 24 April, Putsmans took up the correspondence on Mr Bailey's behalf. In their first letter to Mr Wood, Putsmans maintained the allegation that TWP's decision to discontinue the criminal department of the firm, contrary to Mr Bailey's wishes and without his agreement, constituted a repudiation of the terms of the partnership and that Mr Bailey looked to the remaining partners to compensate him for his loss. It was also stated that the defendants' conduct constituted grounds for the partnership to be wound up. Court proceedings were threatened. For good measure, and on the same day, Mr Bailey gave written notice of dissolution of the partnership to each of the defendants.
23. The defendants sought counsel's advice. This resulted in a lengthy letter to Putsmans from TWP (signed by Mr Wood) dated 26 April. The letter alleged that it had been agreed at the meeting between Mr Bailey and Mrs Dunford on 23 March that an agreement, referred to in the letter as the "Withdrawal Agreement", had been reached to the effect that Mr Bailey was to withdraw from the partnership on 30 April 2007. The letter alleged that the Withdrawal Agreement was inconsistent with Mr Bailey's action in giving notice of dissolution and that, given that agreement and its implementation, there was no cause of action for Mr Bailey to litigate.
24. The transfer to Tuckers of the criminal department, including Mr Bailey and Mr Walsh-Atkins, went ahead at the end of April but there continued to be an impasse between Mr Bailey and his co-partners over whether he was entitled to compensation and whether, in the events that had happened, the partnership had been dissolved in consequence of his notice or, if it had not been, whether it ought to be dissolved. The result was the issue on 3 May 2007 of the claim in this action seeking, as I have mentioned, dissolution of the partnership, alternatively a declaration that the partnership had already been dissolved, relief consequential upon that and damages for breach of the partnership agreement.
25. Putsmans continued, on Mr Bailey's behalf, to challenge the existence of any agreement between Mrs Dunford and Mr Bailey reached on 23 March 2007. They called for documentary evidence of its existence and suggested that the absence of anything relevant in writing indicated that no such agreement had been reached.

Disclosure: the typed note

26. On 26 October 2007 the defendants gave standard disclosure in purported compliance with the requirements of CPR Part 31. I say "purported compliance" because the disclosure statement was signed by Mrs Dunford alone, effectively on behalf of all of the defendants, whereas the rule requires each party to make and serve a list and disclosure statement: see CPR Part 31.10. The list itself noted, as item 52, "Handwritten note of A Dunford Re: meeting S Bailey 23.3.07" and, as item 53, "Typewritten note of meeting between A Dunford and S Bailey prepared by A Dunford (2 pages) 23.3.07". In the section of the list concerned with documents that the party once had in his control but no longer has, Mrs Dunford merely stated: "originals of any copies previously referred to." There was no mention of any document which had been lost or destroyed.
27. Putsmans took up with TWP (which, until June 2008 represented its own partners, the defendants, in this litigation) the defendants' non-compliance with the requirements of standard disclosure identified above. They called for separate disclosure by each defendant. TWP resisted this as unnecessary. The matter came before Master Price on 10 January (there was also a cross-application by the defendants concerned with a separate matter). The application resulted in an order for individual disclosure by each defendant. By disclosure statements made a few days later each defendant gave standard disclosure. The lists were identical to the list and other information which Mrs Dunford had provided the previous October.
28. Putsmans were not satisfied. They questioned the sufficiency of the lists disclosed. Each defendant then made and served a further statement dealing with the points raised by Putsmans. The result was the production by each defendant of office diary entries for material dates.
29. In the meantime, by the end of January 2008, trial witness statements were exchanged. The trial itself was set to start in June 2008.
30. In April 2008 an attempt was made to settle the dispute by mediation. In their position statement filed on behalf of the defendants shortly before the mediation it was stated, in reference to the meeting between Mr Bailey and Mrs Dunford on 23 March 2007, that:

"…There is a dispute about what was said at this meeting. AD says that she and the claimant agreed that (so long as the details of the deal could be worked out with Tuckers) the claimant would leave TWP on 30^th April taking the criminal department with him. By contrast the claimant says that nothing was agreed. However he made no note of this meeting, whereas AD's note is clear, full and contemporaneous. If the claimant's recollections were correct, then AD's note would have to have been deliberately falsified at some point. This is not a credible possibility and the defendants expect the court to accept AD's version of the meeting."

31. Mr Marshall submitted, and I agree, that the references to "AD's note" and to "AD's version of the meeting" in that statement were to what at paragraph 75 of her trial witness statement signed by Mrs Dunford on 30 January 2008 she identified as the two-page typed note of that meeting identified as item 53 in the list of documents attached to the standard disclosure statements which each defendant had provided. Putsmans immediately took up the point in a letter dated 11 April. They stated, correctly, that the typed note was undated. They also stated that they remained to be persuaded that the note was prepared at or immediately following the meeting. They asked to be told when the note was created and stated that TWP's computer systems, including any relevant metadata, were subject to disclosure.
32. The mediation took place the following Wednesday, 16 April. It did not result in any compromise. The dispute was thus destined for trial.
33. On Friday 18 April Putsmans sent a request for further information. Among the matters on which information was sought was the date and time on which the typed note of the 23 March meeting was made. Production was sought of the relevant computer record.
34. A fortnight later, on 1 May 2008, the defendants served their response. The response stated that the typed note had been made on 25 April 2007. A printout of the relevant computer metadata was appended. This disclosed that the note had indeed been created on 25 April 2007, at a little after midday, but also that it had been modified on 19 June 2007.
35. Also on 1 May 2008, the defendants supplied a supplemental list of 41 further documents dated variously between 26 March 2007 and 4 May 2007. Most of them, according to their description on the list, appear to relate to communications between TWP and Tuckers over the transfer of the criminal department and the implementation of that transfer. The first of the documents disclosed, dated 26 March, was a handwritten note of a telephone conversation by Mrs Dunford with Mr Craig of Tuckers concerned with the transfer of the criminal department to Tuckers. It was this discussion - the first between partners in TWP (other than Mr Bailey) and Tuckers over the transfer - which cleared the way for the transfer. It resulted on 23 April in the signing of Heads of Agreement for the transfer and in the transfer itself a week later which was another of the documents disclosed by the supplemental list. I shall return later in this judgment to the handwritten note dated 26 March 2007 which, for convenience, I shall refer to simply as "the 26 March handwritten note". For the moment I continue with the aftermath of the revelation that the typed note of the 23 March meeting had not been created until 25 April 2007 and had been modified eight weeks later on 19 June 2007. 25 April 2007 was the day before the defendants had a conference with Mr Anderson. (See paragraph 11 of Mrs Dunford's fifth witness statement.) It followed the threat of litigation by Putsmans, on Mr Bailey's behalf, in their first letter to TWP sent the previous day.
36. On 2 May 2008, the day following disclosure by the defendants of the metadata relating to the creation of the typed note, Putsmans took up in correspondence with TWP the four-week gap between the meeting to which the note related and the creation of the note. They also took up the modification of the note on 19 June. TWP, through Mr Wood, replied on 12 May to say that there was no draft of the typed note earlier than 25 April and that "Mrs Dunford believes some minor changes were made to the text" when she modified the document on 19 June. The letter also explained that the defendants were unable to provide a copy of the typed notes as it existed when first created "because this was overwritten on the 19 June 2007 and no changes were tracked".
37. This generated a further exchange of correspondence between Putsmans and TWP. By now Putsmans were accusing Mrs Dunford of dishonesty. It resulted in a further witness statement by Mrs Dunford, her third in the overall action (and dated 13 June 2008), in which she confirmed the circumstances in which the typed note had been prepared (on 25 April 2007) and later amended (on 19 June 2007). She described the note as "a perfected version of the hand-written note which I made on 23 March 2007" (ie of document 52 in the defendants' disclosure lists). She confirmed that, despite searches, she had no copy of the typed note in its unmodified form. She accepted that the disclosure statements, at item 53 of the list of documents, had been incorrect in attributing 23 March 2007 as the date of the typed note.
38. This did not satisfy Putsmans. They wanted to know whether any hard copies of the unmodified typed note had been made and if so what had happened to them. They also wanted to know whether any electronic copies of the unmodified note had been circulated and if so to whom.
39. Mrs Dunford obliged with a further witness statement, her fourth, dated 20 June 2008. In it she explained that two hard copies of the unmodified typed note had been made, one of which had been placed on her file and the other of which had been sent to Mr Anderson as part of a bundle of enclosures when he had been instructed. She explained that she overwrote in manuscript her own hard copy, in her file, with the "minor amendments" which, as I understood it, were then incorporated into the electronic version of the document on 19 June. She explained that a hard copy of the modified note was then made and placed on her file in substitution for the overwritten hard copy of the 25 April version which she then destroyed. As to the copy sent to Mr Anderson, she explained that she had raised with him what had happened to that document and had been told - and I have no reason to doubt - that he had destroyed his papers, including the typed note, when he was later provided (before all of this had become an issue) with further papers in the dispute. Mrs Dunford also confirmed that no electronic copies of the unmodified 25 April version of the note had been circulated.
40. Also on 20 June, each of the other defendants made and served witness statements correcting the earlier attributions by them of 23 March 2007 to the typed note. Each explained when he had first become aware of the date of creation of the typed note. In each case it was either 17 April 2008 (in the case of Mr Wood) or 25 April 2008 (in the case of the other defendants).

The abortive trial

41. As I have mentioned, the dispute came on for trial on 23 June 2008. It came before Mr John Jarvis QC sitting as a deputy judge of this Division. It was limited to a series of issues - effectively concerned with liability - in accordance with a direction by Master Price given at a case management conference on 20 August 2007.
42. The trial did not proceed because, on Mr Bailey's behalf, Mr Marshall applied for, and the deputy judge granted, permission to serve out of time a notice pursuant to CPR Part 32.19(1) requiring the defendants to prove the manuscript attendance note in Mrs Dunford's handwriting of her meeting with Mr Bailey on 23 March 2007, ie item 52 in the disclosure lists. For convenience I refer to that note as "the 23 March handwritten note". Directions were given for evidence on the issue. The trial itself was adjourned to a date to be fixed. The hope was that the adjournment would be very short. In the event it has been fixed to come on in June 2009 with an increased time estimate of eight days together with a day for pre-reading. (The trial had originally been fixed for a three-day hearing.)

The challenge to Mrs Dunford's handwritten note of 23 March 2007

43. The apparent shift of focus from the incorrect dating of the typed note (item 53) of the 23 March meeting and its subsequent modification in June 2007 following its creation on 25 April 2007, to the 23 March handwritten note (item 52) was prompted by what Mr Marshall described to me as an inspection of other documents "with fresh eyes". Their suspicions now thoroughly aroused, Mr Bailey and those advising him turned their attention to certain words in the 23 March handwritten note which had been squeezed in between other lines in that note. The suspicion of Mr Bailey and his advisers was that the additional words had been inserted into the document subsequent to the meeting, and therefore subsequent to the occasion on which the remainder of the handwritten note had been prepared. Or as it is stated in paragraph 10 of the grounds for the notice under Part 31.19:

"The Claimant will say that the natural inference that ought to be drawn is that at the time of giving instructions to Junior Counsel on 25 April 2007, or on some date prior to 25 April but subsequent to Monday 26^th March 2007, Anna Dunford considered the original manuscript attendance note that she had made, at or immediately after the meeting with Simon Bailey on Friday 23^rd March 2007, and recognising the importance of supporting the allegation that agreement had been reached by her with Simon Bailey on Friday 23^rd March 2007 that he ceased to be a partner in The Wilkes Partnership with effect from 30^th April 2007 and the importance that that date be shown, inserted the text referred to under paragraph 7 above."

Needless to say that is an allegation of great seriousness to be levelled against a solicitor. Effectively, it accuses Mrs Dunford not simply of dishonesty but also, given Mrs Dunford's steadfast insistence in this action that the words were not added subsequently, of seeking, and continuing to seek, to pervert the course of justice.

44. Since the note is so short ("exiguous" is how Mr Marshall described it) I set it out in full. I have enclosed the words which are alleged to have been added later ("the challenged insertion") in a dotted box:

45. In her fifth witness statement dated 9 July 2008 and made in response to the Part 31.19 Notice Mrs Dunford said this about her meeting with Mr Bailey on 23 March 2007 and the 23 March handwritten note:

"5. The Claimant came to see me at about 5 pm later that day [23 March]. I made manuscript notes during the meeting [a reference to the 23 March handwritten note] …

6. The Claimant explained that in fact Tuckers were prepared to commit to taking on the Criminal Department of TWP once he had extricated himself from TWP. However, he stressed that Tuckers wanted TWP not to resign his contract with the LSC but instead to write to the LSC requesting its transfer to Tuckers. He was very specific and adamant during the course of the meeting as to the wording of the letter which Tuckers wanted us to send to the LSC, which is why I decided to make a note of the wording which he specified. I went back up my notes and squeezed in the wording "whole business of Carvers Criminal Department with all files to Tuckers. Solicitors. We will cease to act on 30^th April. Takeover wef. 1^st May., so I was clear as to what he and Tuckers needed me to say to the LSC. This was all done during the meeting itself."

So Mrs Dunford's evidence is that the challenged insertion was made during the meeting itself, and not later.

46. It is also convenient to point out at this stage that in the same witness statement Mrs Dunford stated that she continued to regard the typed note (in the form modified on 16 June 2007) when taken together with the 23 March handwritten note, as "a clear, full and contemporaneous record of the meeting". By no stretch of the imagination can the typed note be described as contemporaneous with the meeting to which it referred. But Mrs Dunford's other point is that, as far as she is concerned, the typed note accurately records what occurred at the meeting. In a later passage she stated that she had been advised, incorrectly as I think, that the typed note was privileged because it had been "prepared in contemplation of litigation and for the purpose of obtaining advice from counsel". The point, however, is academic since the note was in any event disclosed.

The involvement of forensic handwriting and document examiners

47. Returning to my narrative of events, Mr Bailey and his advisers were not content with Mrs Dunford's explanation for the challenged insertion. They continued to assert that it had been added later. In order to shed further light on the matter, the expertise of forensic handwriting and document examiners was now engaged: Robert Radley for the defendants and Dr Audrey Giles for Mr Bailey.
48. There is, in the event, no dispute between Mr Radley and Dr Giles - both of whom are acknowledged experts in their field - on what is to be gathered from an examination of the 23 March handwritten note. This is that, in the words of Mr Radley, there was "no evidence to support the proposition that this [the challenged insertion] has been added at a substantially later point in time". In particular, he said, there was no detectable difference between the inks used for the challenged insertion and the remainder of the handwritten note. He also noted that the reverse of the paper on which the 23 March handwritten note was made showed "slight embossings … for not only the main text but also the [challenged insertion] showing that similar, or the same writing surface has been used for all entries…". Dr Giles stated that "the microscopic appearance of the pen lines and the width of the pen lines in the [challenged insertion] are similar to those seen elsewhere on the Note".
49. There was more to the forensic examination of the 23 March handwritten note than that. Available to both experts was the 26 March handwritten note (see paragraph 35 above) made by Mrs Dunford of the conversation she had with Mr Craig of Tuckers on 26 March 2007. It appears that some of the written markings on the 26 March handwritten note had created decipherable impressions on the 23 March handwritten note. Included among those affected by the impressions was the challenged insertion. In other words, the challenged insertion had been made prior to the creation of the 26 March handwritten note because otherwise the impressions caused by the creation of the later note could not have appeared on the earlier note and, in particular, on the challenged insertion. Both experts were agreed on that.
50. But there was a wrinkle. This was that only some of the contents of the later note appeared, by way of impressions, on the earlier note and the very few that there were suggested that when those impressions were made the later note had not been in exact folio alignment with the earlier note. In short, parts of the later note had been added after the remainder of the note had been written. Among these was the impression created by the date which appears on top left corner of the later note, namely "26/3/07" (the date of the conversation to which the later note related). The wrinkle was this: when exactly was that date added? If it was inserted on 26 March 2007 it was clear beyond any reasonable doubt that the challenged insertion could not have been later than the conversation to which the later note related. The expert evidence does not establish, however, when the date "26/3/07" was inserted on the 26 March handwritten note. As Dr Giles commented, it could have been within minutes or hours or days if not longer of the making of the bulk of the remainder of that note.

The challenge to Mrs Dunford's handwritten note of 26 March 2007

51. Challenged on this by Putsmans a few days before the hearing started in front of me, George Green LLP (by now acting for TWP) responded by reporting that Mrs Dunford had confirmed that the date was "written on her note of her telephone conference call with Mr Craig contemporaneously with that call, ie during or at the end of the call". They added that certain items, namely some ticks and a deletion mark (in red ink as I understand), were added later as matters were actioned. This is because the note was used as a check-list of things to be done.
52. Notwithstanding that statement, Mr Bailey seeks now to put the defendants to proof of the 26 March handwritten note, in effect when exactly the "26/3/07" and possibly other parts of it were written. Towards the end of the hearing before me I gave permission for this to be done.
53. The difficulty which Mr Bailey faces in seeking to challenge the date when "26/3/07" was written on the 26 March handwritten note, and thus to sustain his challenge to the dating of the challenged insertion on the 23 March handwritten note, is that, as I understood it from Mr Marshall, Mr Bailey contends that the challenged insertion was made no earlier than 2 April 2007 and no later than 17 April 2007. It cannot realistically be earlier than 2 April 2007 because prior to Mr Bailey's letter of that date (in which for the first time he complains of being effectively expelled from the partnership and advances his claim for compensation) there had been no dispute over what had been said and agreed at the meeting on 23 March: the issue simply had not arisen. On the other hand, there is no reason why if (contrary to Mrs Dunford's confirmation) the date "26/3/07" appearing on the 26 March handwritten note was added after 26 March 2007 she should have waited until 2 April or even later to make the addition and why, if she did, she should do it after adding the challenged insertion to the 23 March handwritten note and, what is more, do so while resting the 26 March handwritten note on top of the 23 March handwritten note.
54. Given the suspicions that Mr Bailey plainly harbours about the integrity of his former partners, Mrs Dunford in particular, it comes as no surprise that he was unwilling to accept Mrs Dunford's explanation about the challenged insertion. Rather than leave it to the forthcoming trial to ventilate this matter and await Mrs Dunford's cross-examination (and the cross-examination of her co-defendants) to establish, if he can, that she falsified the 23 March handwritten note (and also, it seems, the dating of the 26 March handwritten note) he wishes to demonstrate in advance of trial that she has acted in the dishonest way that he alleges, that she has "deliberately" destroyed the original version of the typed note and dealt with disclosure in a dishonest way and that the other defendants have "repeatedly" failed to comply with their disclosure obligations. He seeks to demonstrate these matters in order to persuade me to debar the defendants from defending his claim at trial or, at the very least, debar them from contending that any agreement was reached between Mr Bailey and Mrs Dunford on 23 March 2007. Hence this application issued two months after Mrs Dunford gave her fifth witness statement.

An application for the trial of preliminary issues?

55. I have set out in paragraph 1 of this judgment the precise relief that is sought, as modified Mr Marshall in the course of his submissions. Although the applicant prayed in aid CPR Part 32.7(1) in support of an order that Mrs Dunford and Mr Wood be cross-examined, the reality is that Mr Bailey seeks what is in effect the trial of two preliminary issues, namely whether Mrs Dunford added the challenged insertion to the 23 March handwritten note "for the purpose of advancing a false case", the false case being that an agreement was reached on 23 March 2007, and whether she deliberately destroyed the original (25 April) version of the typed note. When I asked Mr Marshall what he meant by "deliberately destroyed", since it has not been suggested by Mrs Dunford that her destruction of the original version of the typed note was accidental, and whether it was being suggested that she did so dishonestly, ie with a view to destroying evidence material to this dispute, Mr Marshall hesitated. He felt unable to go further than say that the destruction was non-accidental. He accepted that he had no material to indicate that Mrs Dunford had done so with the intention of destroying evidence material to this dispute. But from the tenor of the correspondence and Mr Marshall's skeleton argument there is no doubt that Mr Bailey would like to show that she did if he can.
56. If an application had been made to have these two questions determined as preliminary issues I have no doubt that it would have been refused. There would have been two reasons for doing so. The first is that the question when the challenged insertion was made is not something which can be easily and conveniently severed from the remainder of the questions that fall to be tried. Its determination requires an understanding of the background and lead-up to the 23 March meeting and of its immediate aftermath. For it would be necessary to understand just how far Mr Bailey had progressed in his negotiations with Mr Craig and others from Tuckers in the days prior to his meeting with Mrs Dunford in order to evaluate what he was seeking from her - the meeting with her was at his invitation - and whether in particular he had by then in mind that he would leave TWP and join Tuckers at the end of April 2007 and, if so, what this would have involved. So, apart from hearing evidence from Mr Bailey himself and Mrs Dunford, it would be necessary to consider the evidence of Mr Craig and Mr Turner.
57. As to what flowed from the meeting, it is to be noted that in paragraph 76 of her witness statement Mrs Dunford states that during the course of her meeting with Mr Bailey Mr Wood "called in on the telephone as he had had to leave before Simon [Bailey] arrived and I told him Simon's news and he asked me to pass the message to Simon that he was absolutely delighted at this outcome". This is reflected in Mr Wood's trial witness statement in which he states that he was away for the weekend starting 23 March 2007 and that, although aware that Mr Bailey wished to see Mrs Dunford before close of business on that Friday, he had left the building at approximately 4:30 pm. In paragraph 43 he continues:

"43. I was subsequently on the motorway and telephoned the Managing Partner's direct dial number at approximately 5.45 pm. She had got the Claimant with her in her office and reported to me via speaker phone that the Claimant had arranged to merge his team with Tuckers and wanted to do so as of the end of the financial year, 30^th April 2007 which I said was absolutely great news and an excellent outcome. The Managing Partner told me that the Claimant had arranged for us to speak to Tuckers on the following Monday (Brian Craig, the Business Manager) and that there was a certain form of wording that Tuckers would need to get our criminal contract transferred. I recalled saying to the Claimant that we would see him on Monday to discuss finalising his position with us and the call then ended.

44. I then personally telephoned the three other equity partners, Gareth O'Hara, Mark Abrol and David Clearly to tell them what had happened. They were all very pleased to hear that the position had been resolved."

58. Each of the three other defendants refers in his trial witness statement to having heard during the evening of 23 March 2007 of the terms that Mrs Dunford had reached with Mr Bailey. Thus, for example, Mr O'Hara states (in paragraph 16 of his trial witness statement) that:

"Later that evening [23 March 2007] I received a telephone call from Nigel Wood at approximately 6.00 pm. Nigel called me from his car to tell me that Anna had just had a meeting with Simon to the effect that Simon, after all, had somewhere to go and that he would be leaving the Firm on 30^th April 2007 and taking the whole team with him to another criminal firm called Tuckers. I was very pleased to hear this and it seemed to me to have been the best possible solution to the position that we were all in."

59. If therefore Mr Bailey is to establish his challenge to Mrs Dunford's account of the outcome of her meeting with him he has to challenge the recollections of these other witnesses. Mr Marshall advanced an argument to the effect that the defendants other than Mrs Dunford made their trial witness statements before they had discovered that Mrs Dunford's typed note of her meeting with Mr Bailey was not made until several weeks after it had occurred and that, believing that it was contemporary with the meeting, the other witnesses may unconsciously have been influenced by its contents in framing their recollection of what Mr Wood told them when he rang each of them later on that Friday. Likewise, in the case of Mr Wood: when making his trial witness statement he would have been influenced, so the argument runs, by the typed note setting out what it was that Mrs Dunford had said to him when he rang Mrs Dunford while the meeting was still progressing.
60. It is not obvious that Mrs Dunford's typed note of the meeting bears on Mr Wood's recollection of what he said when he spoke to Mrs Dunford, much less on what he then said to the other partners as both he and they claim to recall in their witness statements. But the fact, if fact it be, that the typed note influenced their recollection of events does not diminish the need for their evidence on this matter to be tested before any decision can be safely reached on what if anything was agreed at the meeting between Mr Bailey and Mrs Dunford.
61. This means that in order to determine this particular issue it will be necessary for the claimant and all of the defendants and at least two others, Mr Craig and Mr Turner (assuming that Mr Bailey proposes to rely on their witness statements at the trial), to be called. Mr Craig's evidence is material to this issue not least because in a second witness statement he takes issue with passages in Mrs Dunford's recollection of events, including whether, viewed from Tuckers' position at that time, she could have agreed with Mr Bailey the transfer date referred to in the challenged insertion and whether as she claims to recall Mr Bailey could have stressed to her that Tuckers wanted TWP to write to the LSC and to do so by following a particular wording. Thus, the issue would risk turning into a small trial in itself, except that it would not be dealing with all of the issues on which the evidence of those other witnesses would be material.
62. This brings me to the second reason why it would not be appropriate to direct preliminary issues on these two matters. This is that determination of the date when the challenged insertion was made, and of the separate question whether Mrs Dunford destroyed the 25 April version of the typed note with a view to destroying evidence material to the dispute, will not be decisive of the outcome of this dispute in any event. Nor would Mr Bailey's attempt, if successful, to demonstrate that Mrs Dunford made her disclosure statement knowing it to be untrue and deliberately destroyed the 25 April version of the typed note. Mr Marshall's own skeleton argument recognised this when it stated (at paragraph 101(5)) that "even on her [Mrs Dunford's] own evidence the inserted text [ie the challenged insertion] does not purport to record an agreement reached between Mr Bailey and Mrs Dunford on 23.3.07 by which she consented to his leaving TWP". Precisely so. Indeed, one of the matters that has puzzled me throughout this hearing is why it is so important to Mr Bailey's case (to the effect that he was forced out of the practice by the defendants' decision to close down the criminal department and that he did not simply choose to go of his own accord) that he establish that no agreement of any kind was made with Mrs Dunford at their 23 March meeting (to the effect that he would move to Tuckers at the end of April taking the criminal department with him) when it is common ground that by the end of the following week just such an agreement was reached, and was carried into effect a month later. If, as he contends, the agreement reached the following week does not prevent him from saying that he was "pushed" and did not simply "jump" (to borrow the language in Mr Marshall's skeleton argument) I have difficulty in seeing why the fact that he may already have reached an agreement along those lines with Mrs Dunford a week earlier (albeit conditional upon Tuckers' acceptance of the arrangement and the LSC's willingness to transfer - or novate - the LSC contract to Tuckers) should make any difference. But the fact that the determination of this issue would not be decisive of the outcome of the dispute means that all (or most) of the witnesses called on the issue would have to give evidence again at the trial. They would have to do so without going over the same ground covered by the preliminary issue which would not be easy.
63. But Mr Bailey does not seek the determination of these matters in order to shorten what has to be determined at the trial, as a preliminary issue is ordinarily intended to do. Rather, as the application makes clear, it is with a view to the defendants being debarred from defending his claim altogether. It is to this matter that I now turn.

The basis of the application

64. The jurisdiction which Mr Bailey invites me to apply is the court's power, under either CPR Part 3.4(2) or the court's inherent jurisdiction, to strike out a statement of case (or some part of it) where it is of the view that, as a result of the conduct of the party whose statement it is, a fair trial is not possible.
65. Mr John Randall QC, appearing with Mr Mark Anderson for the defendants, reviewed the two leading cases on this jurisdiction (Logicrose Ltd v Southend United Football Club Ltd, The Times 5 March 1988 and Arrow Nominees Inc v Blackledge [2006] BCLC 167) and submitted that a number of propositions material to this application were to be derived from those two cases. Shortly summarised (and taking them in a different order from that in which Mr Randall advanced them) those propositions are as follows. First, an order debarring a litigant from participating at the trial is a serious step which requires a real (or substantial) risk that the trial would otherwise be unfair. Second, such a risk is not to be readily inferred but where the complaint involves interference with documents (for example, forging or tampering with them), it may be inferred if the interference is found still to be continuing and the court is of the view that it will (or may) affect the testing of a witness's evidence at the trial. Third, the purpose of such an order is not to punish or penalise a litigant's bad behaviour even if the litigant's behaviour has amounted to a contempt of court; rather, the question is whether a fair trial is achievable or whether any judgment in favour of the party whose conduct is the subject of complaint would be unsafe. Last, past misbehaviour if rectified can ordinarily pose no threat to the fairness of the trial. The court should therefore guard against allowing any sense of indignation at a litigant's conduct to lead to a miscarriage of justice by denying that litigant the right to participate at the trial. Mr Marshall did not question Mr Randall's summary of the legal position. I accept it as accurate.
66. The central question which the court asks itself is whether the litigant's conduct has given rise to a substantial risk of injustice if the action proceeds to trial.
67. Mr Marshall submitted that I should reach such a conclusion in the present case on the material presently before the court. He relied on three particular passages from the judgment of Chadwick LJ in Arrow Nominees. Summarised they are: first, (at paragraph 55), that the court should guard against the trial process being "hijacked" by the need to investigate the litigant's misconduct so that more of its time is occupied in dealing with that matter than would otherwise be necessary for deciding the real points in issue in the litigation, resulting in unfairness to the other parties to the proceedings and unfairness to other litigants needing to have their disputes tried by the court; second, (at paragraph 56), that if at trial the court considers that the litigant is, by his fraudulent conduct in the litigation, persisting in his object of frustrating a fair trial, the court should consider without further ado whether it is fair to the other litigants, and is in the interests of the administration of justice generally, to allow the trial to continue, such that a decision to stop the trial in these circumstances may be a proper and necessary response to the litigant's conduct; and, third, (at paragraph 61) that where on an application to strike out (in circumstances of the kind under discussion) there is an issue over the full extent of the fraudulent conduct the court should consider whether to resolve that question on the application itself and before the trial, if necessary by directing cross-examination, rather than leave it to be dealt with at the trial. Mr Marshall referred also to passages from the judgment of Ward LJ in Arrow Nominees (at paragraphs 69 to 73), in particular those emphasising the importance of the overriding objective enshrined in the CPR and the need to protect the court's own interest in administering justice fairly not only as between the parties before the court but also for the benefit of all others using the court service by ensuring that the dispute does not take up a disproportionate amount of the parties' and the court's resources.
68. Mr Marshall submitted that those observations were in point in the present case and that I should, if necessary with the assistance of cross-examination, resolve the issues here and now rather than leave items to be dealt with at the trial where the focus should be on the real matters in issue between the parties. If I were to investigate those issues now, he submitted, I would conclude that a fair trial was not possible with the result that I should debar the defendants from defending at all or at the very least debar them from relying on the existence of any agreement said to have been reached at the meeting on 23 March 2007. In support of this, he drew attention to the time and resources that had been devoted to the questions raised by the defendants' non-compliant treatment of their disclosure obligations, Mrs Dunford's action in destroying the original (25 April) version of the typed note and the circumstances in which the challenged insertion was made.
69. The difficulty with Mr Marshall's submissions is that they bear little relationship to the actual matters in dispute and to the very obvious differences between this case and Arrow Nominees. In Arrow Nominees, one of the petitioners had admitted to forging a number of documents and was found to have continued to lie on oath as to the extent of his fraudulent activity in relation to documents. The result was that it was impossible to have confidence in any documents produced by his side unless the documents were corroborated by other evidence. It was found that the existence of the forged documents was likely to have infected evidence contained in affidavits and witness statements prepared in reliance on the documents in question and likely therefore to have a pernicious effect on the ability of the witnesses in question to recollect the events to which the forged evidence related.
70. There is no question of any documents having been forged in the present case, merely that the date on which the typed note was made was wrongly stated in the disclosure lists to be the date of the meeting to which it related. The reference in the position statement for use in the mediation that the typed note was "contemporaneous" with the meeting was corrected less than three weeks after the statement was made. The misstatement of the date was corrected in the revised disclosure lists and statements made two or so weeks later. The dates on which the typed note was made - and later modified - have been explained. Apart from the cost to the defendants of putting these matters right - which they must expect to carry themselves - and the reasonable costs of Mr Bailey in raising this shortcoming in their disclosure, it is difficult to see how these matters can be said to have affected the forthcoming trial in any way, let alone that they give rise to any risk that a fair trial will not be possible. In particular it is difficult to see how the existence of the typed note (which, it should be emphasised, Mrs Dunford continues to assert as an accurate record of her meeting with Mr Bailey) can have infected the evidence of the other witnesses or, no less importantly, can have any bearing on the substantive question at the trial, namely, whether in the circumstances Mr Bailey had no option to leave TWP (thereby sustaining loss) even though he was not in fact expelled and was party to the transfer of the criminal department to Tuckers.
71. It will be open to Mr Bailey at the trial, if he thinks it material to his claim, to cross-examine Mrs Dunford with a view to establishing that when she attributed the incorrect date to the typed note she was acting dishonestly and that when she destroyed her only hard copy of the original (25 April) version of the note she did so with a view to preventing a material piece of evidence from coming before the court. Knowing now that the note was typed up a month or more after the meeting to which it relates and that it was modified several weeks later, Mr Bailey will be able to cross-examine Mrs Dunford on the extent to which the note can be relied upon as an accurate record of what occurred at the meeting. He can cross-examine Mr Wood and the others to establish that their recollection of events during the early evening of 23 March (when Mr Wood spoke first to Mrs Dunford and then to each of the other defendants) has been coloured by their subsequent reading of the typed note.
72. The fact, if it can be established, that Mrs Dunford has acted dishonestly in either or both of the ways suggested does not in my judgment justify the debarring relief which is claimed. It necessarily follows that it cannot be a correct approach to seek to have these matter determined in advance of trial - a step which, to my mind, would be wholly antithetical to the importance of ensuring that a dispute does not take up a disproportionate amount of the parties' and the court's resources emphasised in the passages from Arrow Nominees to which my attention was drawn.
73. I have already dealt at some length with the other ground relied on the application: that Mrs Dunford made the challenged insertion subsequent to the remainder of the 23 March handwritten note and did so with the purpose of advancing a false case on behalf of the defendants. For the reasons I have explained it will be quite wrong and, I would add, a wasteful deployment of the court's resources, to direct a hearing of that issue in advance of the trial. Even if Mr Bailey were to succeed in establishing that Mrs Dunford acted in the way he alleges it would not mean that there was any risk that a fair trial of the dispute would not be possible. As far as the matters in dispute are concerned it would merely mean that on the question whether anything and if so what was decided at the 23 March meeting and, doubtless, on other contentious matters of fact, Mrs Dunford's word was not to be trusted.

Result

74. These are the reasons why, as I announced at the conclusion of the hearing, I dismissed Mr Bailey's application.