"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.. |
Wasted Costs Orders are not easy...
In theory (at least) it is simple. Under the CPR you can apply orally at ANY hearing - you don't even need to pay a fee, serve Notice or arguments (though you can if you wish to)
In practice you will have problems:
To illustrate this I tried to apply in 2005. I filed and served advanced Notice of my intention in plenty of time - all went quiet. The hearing was to be on Monday. On Friday afternoon before my Application was returned on the pretext that I hadn't paid the fee (I was exempt). This left me rushing around to fax the application back and ask for it to be reinstated. In the event His Honour Judge Cardinal (Birmingham) barely gave it lip-service (the only witness was David Curwen) and made this Order.
In fairness to H H J cardinal the FACT we now know were not before him... he was not told there was no contract, that the FDC Law had completely ignored the Client Care Code or that D J Rutherford had been misled or that the Forms H were based on £80/hr and the uplift was the MAIN "reason" for the increase - (not the one he accepted which LIAR Nigel Dougls Long had told D J Brookes)
All I'm really saying is WCO's are rare despite the Courts DUTY and POWERS.
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Rulings Sought in the High Court...
I will be asking His Honour Judge Mitchell and (hopefully) the Court of Appeal for clear and unequivocal ruling on the following:
How any of these (possible) rulings apply in this case?
In addition I will be asking the Court to explain to me (a Litigant in Person)...
Why FDC Law's 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?
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European Convention on Human Rights and Fundamental Freedoms http://www.pfc.org.uk/node/328
Article 6
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly…
Article 10
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
Article 13
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. [more]
The Government had not provided this (LCS / SRA/ LSO are useless) - if the Courts fail then I guess I will have to seek Judicial Review ... and finally take the UK Government to Starsbourg for failing to provide an effective remedy against FDC Liar.
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In July 2008 I applied to the Court of Appeal in a final attempt to obtain justice and in the sincere hope of setting a precedent that would prevent what has happened to me, through the lies and duplicity of FDC Law, their council and their LYING costs draughtsman, from happening to anyone else.
My application was rejected… but applications can’t simply "disappear".
Eventually His Honour Judge Coleridge (Bristol) ordered that my application be transferred to the High Court of Justice, Principle Registry of the Family Division for hearing by His Honour Judge Altman.
After a LONG wait (and not a little chasing) - on 1st July 2009 His Honour Judge John Mitchell made this Order and the matter is to be heard in Gee Street Court House on Monday 16th November 2009.
Sadly this represents yet another "hurdle" in the way of justice (and the courts have already placed enough of these in the way). Firstly I must show tat the appeal has prospect of success. Then I must show that in NEEDS to be transferred to the Court of Appeal in the public interest. Difficult given the ever-present "inequality of arms".
Paragraph 6 of the Order suggest that the judge may already be minded to increase those hurdles. Just how CAN a judgement in 2009 affect an appeal of an order made in 2008? Nobody has even contested the RIGHT of D J James to MAKE the order sought - he found he HAD that power. Why?
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Basic Competence ... and lack thereof...
[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? - It is true that FDC Law complained about my conduct in Nigel Long's bill of October 2004 but these are empty statements that were never established. If my conduct were really to blame you would expect this to have shown up in the costs estimates and for them to have complained before.
FACT is they didn't - why wait more than a year?
It is also a FACT that "Incompetent" and "At times woeful" were the words His Honour Judge Cardinal (Birmingham CC) used to describe FDC Law's conduct in 2005... hmmmm!
LIP (£9.25/hr) Vs "Professional" (£165/hr) - seems I'm entitled to 17 times less "competent" than FDC Liar. (Flippant remark: Does this qualify me to become a judge in the BATH County Court?)
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Near the top of the previous page I said that the Judgement of D J James sets a very worrying precedent for FDC Law’s ongoing behaviour and that of "similar" firms. Here is why…
Following the release of the draft of this judgement, in June 2008, solicitor and Partner in FDC Law, Ben Whelan, signed a further false declaration claiming £1,000’s in costs the firm was NOT entitled to under the Law. Whelan was in court in March 2008. He heard his former Senior Partner’s admission and he heard how important a solicitors signature is. He had no excuse for this false representation.
In October 2008 the Association of Law Costs Draughtsmen (ACLD) fined Nigel Douglas Long FALCD, 9 Boulevard Weston-Super-Mare £5,000 with £500 for his part in "most serious disciplinary offence" (Henry L J in Baily Vs IBC Vehicles).
The "monkey" (Long) was fined. The "organ grinder" (Whelan) got off scott-free.
This is the DANGER of judgments of this nature. One successful lie is immediately followed by another attempt to mislead...
Henry LJ (at 575–576) also highlighted the importance of the signature by the solicitor to the bill of costs:
'In so signing he certifies that the contents of the bill are correct. That signature is no empty formality. The bill specifies the hourly rates applied, and the care and attention uplift claimed. If an agreement between the receiving solicitor and his client … restricted (say) the hourly rate payable by the client, that hourly rate is the most that can be claimed or recovered on [assessment] …
The signature of the bill of costs under the rules is effectively the certificate by an officer of the court that the receiving party's solicitors are not seeking to recover in relation to any item more than they have agreed to charge their client … For the avoidance of doubt, I also agree that the [costs] officer may and should seek further information where some feature of the case raises suspicions that the whole truth may not have been told. And the other side of a presumption of trust afforded to the signature of an officer of the court must be that breach of that trust should be treated as a most serious disciplinary offence.'"[more]
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Lastly – FDC Law’s "defence" in 2008
It is incredible to think that FDC Law’s entire defence against my set aside application cost so much and involved David Curwen [here] to draft Skeleton Arguments and argue the case. In March 2008, as a lone LIP, I faced FIVE legal professionals.
Curwen's Case..
.22 out of 23 points wrongly arguing the judge had no powers
1 point - an empty statement amounting to "There was no breach of the Indemnity Principle"
Curwen produced two witnesses regarding his ONLY "argument":
First Witness
, Patricia Wayman, actually admitted her guilt!!!!! In the witness box she backed up her written statement – she should NOT have signed the certificate on Long’s "bill"Second Witness
, Nigel Douglas Long - D J R James found that he deliberately misled the court - hereThat's IT! Curwen? Does THAT represent value for money, do you feel?
| The Court accepts that FDC Law misled the Court on 29/07/2003 |
| The Court accepts that their witness, the person who drafted the "bill" and represented FDC Law in December 2008, deliberately tried to mislead the Court on 07/03/2008 |
| The Court believes that proven liar Nigel Long had a sudden attack honesty in December 2004 and didn’t mislead District Judge Brookes. (Yes! Right!) |
| Final Flippant Remark: At the next playgroup meeting we will have stories about the Tooth Fairy, Father Christmas and the Easter Bunny. Children will be dressing up and learning to jump like kangaroos. All profits will go to FDC Law and the Judges Slush Fund. |
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