"From time immemorial judges have exercised over solicitors . . a disciplinary jurisdiction in cases of misconduct..." Lord Atkin
Lord Wright: In Myers -v- Elman [1940] AC 282; [1939] 4 All ER 484 [here] ...
| “The underlying principle is that the court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally..." Abinger C.B. in Stevens v. Hill [(1842) 10 M.& W. 28]. |
| "... alongside the jurisdiction to strike off the Roll or to suspend, there existed in the Court the jurisdiction to punish a solicitor or attorney by ordering him to pay costs..." |
| "The ground of such an order was that the solicitor had been guilty of professional misconduct (as it is generally called)..." (Provision for Wasted Costs Orders is ALSO inherent in the Civil Procedures Rules (CPR) 1999) |
| Our Courts effectively have a duty as first-line "regulator" and the Courts (rightly) have powers to deal with solicitors that lie and cheat and with those who are negligent or guilty of professional misconduct.. |
In practice there are a number of reasons why this is difficult [more]. However:-
On 1st July 2009 His Honour Judge John Mitchell made this Order and the matter is to be heard in The High Court of Justice, Principle Registry of the Family Division, Gee Street Court House on Monday 16th November 2009.
Whatever happens on 16/11/2009, I will be asking His Honour Judge John Mitchell for some clear and unequivocal rulings on specific issues concerning costs in family cases [more] - he is, after all, at or near the very TOP. [Note]
I will post his answers and his judgement here. (and my Skeleton Arguments after 16/11/2009) [my rights to do this].
For now I leave you with some background FACTS and an overview as to why the Court must now grant a wasted costs order against FDC Law to restore justice. Please visit again soon!!! Delayed until Fri 20/11/2009 here.
Why the Judgement of District Judge James CANNOT be allowed to stand
The true FACTS detailed below were kept from all earlier Courts, and yet FDC Law clearly knew them at the outset.
The later Orders of the court (if allowed to stand), effectively legalise and reward gross solicitor misconduct that appears (I am only a LIP) to be tantamount to deliberate criminal fraud on the part of the solicitors.
This goes against the wisdom of a Roman Law maxim: Quod ab initio vitiosum est, tractu tempore convalescere non potest. ("What is wrong from the beginning cannot be validated by passage of time.") These Orders do not deliver justice in THIS case and set a very worrying precedent for FDC Law’s ongoing behaviour [more] and that of "similar" firms.
The FACTS below were concluded and agreed by District Judge James in 2008. However, he has completely failed to put these into the context of what happened in the beginning and of what was known at each earlier stage of the proceedings. He has (perhaps mistakenly) ignored the facts that were HIDDEN at the time, but which FDC Law KNEW all along, and the effects this had on the earlier Courts, their Orders and my subsequent actions.
Since 2003 FDC Law has Maintained [more] their Client and spent around £40,000 to £50,000 to keep the TRUTH from the Courts until 2008. FDC Law is the SOLE beneficiary to ALL of the subsequent costs Orders.
The ancient formula Nemo auditur propriam turpitudinem allegans. ("Nobody should profit from his or her own wrongdoing.") explains even better the recurrent possibility of the perversion of justice that has happened in THIS case, but which has NOT been addressed by the Bath county Court OR by District Judge James (from Aldershot).
The Background FACTS as established by D J James [known all along by FDC Law]
The bracketed numbers e.g. [43] reference paragraphs in the Judgement
[73] On 29th July 2003 the Senior Partner of FDC Law misled District Judge Mark Rutherford (Bath County Court) over costs in a family case. Catriona Duthie (Top 500) [here] was council appointed by FDC Law on that day.
[72] Specifically, FDC Law asked for an Order for Ancillary Relief Costs in the sum of £6,187.50. Unknown to the District Judge (or Myself), the Form H upon which they based this claim included their Client’s other costs (Divorce and BA02F00456)
[45] We now know that those other costs totalled £1,823.60. We now know that the (AR) solicitors costs recorded by FDC Law at the time were in fact £3,072.80 and their "Estimate" of solicitors AR costs was only £3,170.15
[80] We now know that FDC Law had "completely ignored" the Solicitors Costs Information and Client Care Code 1999. This Inadequate Professional Service (IPS) would have made it difficult for FDC Law to claim ANY costs from their Client. This alone [more] is motive for misleading D J Rutherford and seeking an Order against me that included these other costs. The client would not complain if she didn’t have to pay.
The Form H claiming these costs was prepared on 25/07/2003, 4 days before the Final Hearing. This suggests the false claim was pre-meditated and deliberate.
FDC Law persuaded their Client to attempt to enforce (BA301470, 03/09/2003) the costs order. They did this in the full knowledge that the Order they were seeking to enforce:
6.1 Had been obtained by misleading D J Rutherford.
6.2 Included £1,823.60 of their Client’s own costs.
I will ask His Honour Judge John Mitchell to explain to this Litigant in Person:
Why such a breach of a position of trust and using the Courts to attempt to obtain £1,823.60 of Mrs. Poultney’s costs from ME is NOT an act of criminal fraud by FDC Law? I will ASK for an explanation the public can understand?
[5] ("principle grievance") When I finally turned up evidence of this duplicity I appealed "out of time". An appeal D J James accepts I "won" for the wrong reasons – and yet D J James now seems to accept that I was RIGHT all along.
In June 2004, having learned of my appeal, FDC Law then took a "bonus" of £1,823.60 from their Client and up to £5,000 from the tax-payer. Billing their Client £1,823.60 (2 years after the work was completed) appears to be double-charging notwithstanding it enabled FDC Law to:
8.1 Provide "explanation" to the Circuit Judge (H H Judge Barclay - judgement - 08/09/2004) to contradict the evidence which showed that D J Rutherford had been misled – now an established fact [73].
8.2 Qualify for Legal Aid to "defend" (i.e. mislead again) against my appeal - in full knowledge of the TRUTH
[78] If I had not appealed (and won), if I had simply paid Mrs. Poultney’s Clients Own Costs (in addition to the AR costs), FDC Law "would have limited her costs to her client for all work done to the figure recovered" [SIC]. £6,187.50 for everything – a figure FDC Law raised to £8,011.11 in June 2004 in order to further deceive.
[88] D J James says "Mr Poultney embarked on this adventure nearly five years ago. That it has come so far and cost so much is tragic, but Mr. Poultney, I’m afraid has only himself to blame."
So, according to the judgement of D J James:
I am to blame because FDC Law misled D J Rutherford on 29/07/2003 over costs in a family case and sought to extort an additional £1,823.60 of Mrs. Poultney's costs from me?
I am to blame because FDC Law refused to provide further costs information when the Law Society asked them to in 2004?
That the FPR, the CPR, Principles 17.01 and 17.03 of the Law Society Rules and the whole of the Solicitors Costs Information and Client Care Code 1999 were completely ignored by FDC Law is irrelevant and carries no sanction. This despite the fact that NONE of this COULD have happened if ANY of these Rules had been followed, or if FDC Law had had the guts to tell the Law Society (or H H J Barclay) the TRUTH when they were asked?
The correct action for a wronged party in such a case is to shut up and pay everything the negligent solicitor has (wrongly) demanded.
If the wrong is challenged in our Courts, then a law firm is perfectly entitled to charge their client even more, to hide the TRUTH from the appeal judge and have all of this paid for by the public purse?
It is acceptable for the solicitor to then instruct a lying costs draughtsman to concoct a "bill", based on thin air, which more than doubles the hours they originally claimed. A "bill" that completely undermines Section 2.61F of the Family Proceedings Rules 1999 because it also DOUBLES the hourly RATE upon which the Forms H (and the decisions and Orders of EVERY earlier judge) were based. Filing misleading estimates begets handsome reward - all solicitors should follow suit.
The solicitor clearly knew the charging rate (£80/hr) when she drafted the Forms H, it was her duty to know under Section 2.61F. She knew this when she signed the "bill" claiming £165/hr. According to D J James, failing to tell District Judge Nigel Brookes ANY of this was NOT "misleading" and did not affect his "discretion over costs" or his "Leigh-Type" decision?
FACT: The entire solicitors file was "missing" at the detailed assessment before D J Brookes and he relied many times on the solicitors "certificate" - a full transcript is available.
According to D J James, an experienced family solicitor who decides to sign a solemn "certificate" in 2004 and then decides she shouldn't have signed it in 2008 is WRONG - but only WRONG on the SECOND occasion when she has had four YEARS to think about it and to seek outside legal advice (David Curwen) on the matter?
[64] The fact that Patricia Wayman finally admitted under oath, in March 2008, that she should NOT have signed the certificate, is something to be dismissed by saying that FDC Law’s ONLY "reliable witness" was WRONG? [more]
"What is wrong from the beginning cannot be validated by passage of time."
"Nobody should profit from his or her own wrongdoing."
According to D J James: A Law Firm that has behaved like this in a family case shall be rewarded with an additional £30,000+ for their wrongdoing.
According to D J James: A single parent that was RIGHT all along, but who seeks justice and his Human Rights through the BATH County Court, shall be "fined" £30,000+ for daring to tell the TRUTH.
[85] In criticising ME at paragraph 85 D J James says "On top of that [£20,000+] no doubt will be the costs involved in this application. All of this to shave a few thousand pounds off the liability for costs which arose as a result of his conduct of ancillary relief proceedings."
Really? - "Incompetent" and "At times woeful" was FDC Law's conduct, not mine [more]
"a few thousand pounds off" ? - D J James may well be a good Regional Costs Judge for big money cases, but this remark suggests he has no grasp of small family matters. On a Judge’s salary "a few thousand pounds" may be nothing, but to a single parent, on Income Support in 2003, it was an unobtainable sum – it may as well have been £100,000.
£1,823.60 should NOT have been there. It was almost 1/3 of the bill – which was over 10% of the AR settlement. On 29/07/2003 I factually obtained a substantive Order £9,000 better than the "professional Party’s Offer". Proper costs procedures were NOT followed on 29/07/2003 (H H J Barclay) and D J Rutherford was misled (D J James) – these are the wrongs that were done through the deliberate actions of so-called "solicitors"…
"All of this to obtain a few thousand pounds from Mr. Poultney that FDC Law would have had trouble obtaining from their Own Client because of their own Professional Negligence and Inadequate Professional Service" - Spenser Poultney 24th October 2009
"It is therefore to be regretted that the BATH County Court, especially in view of its MANY hearings in this case, refused to see this issue and in effect legalised a family solicitor’s obstinate disregard of the MANY Rules, her professional duty and the rule of law." - Spenser Poultney 24th October 2009
ECHR, Strasbourg, 27th June 2000 - http://nkmr.org/nuutinen_v_finland.htm
The ancient formula Nemo auditur propriam turpitudinem allegans. ("Nobody should profit from his or her own wrongdoing.") explains even better this recurrent possibility of perversion of justice. It is, therefore, to be regretted that the European Court of Human Rights, especially in view of some of its own precedents, refused to see this issue and, in effect, legalised the obstinate parent's disregard for the rule of law.
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