Jefford: Settlement offer “too little, too late”
The High Court has dismissed an appeal by a barrister who was fined £15,000 for making an “unfounded and serious allegation of misconduct in public office” against a senior judge.
Mrs Justice Jefford said [1] emails sent by John Stenhouse “made an extraordinary allegation of secret collusion between the FTT and HMRC” to strike out a claim the barrister had made for compensation.
Mr Stenhouse, who represented himself, was fined £15,000 by a Bar disciplinary tribunal last June for diminishing trust in the profession over the allegation made against Judge Sinfield, then the president of the First-tier Tribunal (tax chamber).
The barrister made similar allegations against John O’Shea, a litigator in HM Revenue & Customs’ legal team, and John Fairweather, a senior tribunal caseworker at the FTT.
In September 2022, Mr Stenhouse appealed against late payment penalties, even though by the time HMRC had either cancelled the penalties or reduced them to nil. But Mr Stenhouse wanted to pursue a claim for compensation.
After the FTT issued directions, Mr O’Shea told Mr Stenhouse that there was nothing to appeal and that any claim for compensation should be referred to HMRC’s complaints team because the FTT had no jurisdiction.
He said he would be requesting the FTT to close the file, which he did in an email in December 2022 not copied to Mr Stenhouse.
Mr Stenhouse contested HMRC’s argument that there was nothing to appeal. Two months later Mr Fairweather told him that there did not “appear to be any remaining matters” within its jurisdiction other than costs, but if he wanted to continue with the appeal, he should detailed what remained in dispute”.
Mr Stenhouse responded by alleging that Mr O’Shea had been in direct contact with Mr Fairweather.
The barrister wrote: “John Fairweather has done what he was asked to do by the tribunal for the benefit of HMRC. This is completely unacceptable…
“What has actually happened here is that a secret proceeding has taken place leading to a directions order of the tribunal being set aside on the basis of secret representations to the tribunal.”
Mr Fairweather responded by saying he had passed the email to Judge Sinfield, who in turn said strike-out appeared the appropriate course, subject to Mr Stenhouse’s representations.
Judge Sinfield said the letter was the only correspondence Mr Stenhouse had not seen and it did not say anything that HMRC had not already said to him.
The barrister responded: “With regard to Mr Fairweather’s contact with Mr O’Shea I reject the president’s rather pathetic attempt at a whitewash.”
He returned to the “whitewash” theme later in the email, adding that “the president has a rather perverse understanding of the concept of ‘transparency’”.
Judge Sinfield later told the barrister: “The unsubstantiated and wholly false accusations and your peremptory language can only be described as ‘rude’. If you do not withdraw the allegations and make an apology for your tone, I will have no alternative but to report your behaviour to the Bar Standards Board.”
Mr Stenhouse declined to do so. In July 2023, Judge Sinfield struck out his appeal for lack of jurisdiction and refused permission to appeal. The Upper Tribunal also refused permission.
The judge did report him to the Bar Standards Board and the Bar tribunal fined him £15,000 for misconduct and ordered him to pay over £8,000 in costs.
Jefford J dismissed all 12 grounds of appeal. “Mr Stenhouse’s emails, in effect, made an extraordinary allegation of secret collusion between the FTT and HMRC to strike out his claim – which I repeat was itself a misreading of the email correspondence and directions given.
“He was told that there was nothing in this allegation and that there was only one email that had been sent by HMRC to the FTT and not copied to him which was, at that point, also provided to him.
“Yet he persisted in his allegations of secret proceedings and collusion when the complete email correspondence disclosed no such thing.”
Mr Stenhouse submitted that the disciplinary tribunal “was motivated by a desire to justify, uphold and exonerate the actions and allegations of both Mr Fairweather and Judge Sinfield and protect them from criticism or opprobrium”.
Jefford J went on: “He contends that this is the only possible explanation for the superficial nature of the decision, the errors in the decision identified in his grounds of appeal, and the dismissal of the recusal application.
“There is no merit in any of these complaints about the decision for the reasons already given and this ground must fall away. For the avoidance of doubt, there is equally not a shred of evidence that the [tribunal] was improperly motivated.”
In late 2024, Mr Stenhouse offered to make a formal written apology to Judge Sinfield for telling him to “stop messing me around and get on with it”, and to pay 50% of the BSB’s costs.
This was “too little, too late” and the tribunal was right not to take it into account when deciding on costs.