Baker: Serious deficiencies in the procedure adopted by judge
The Court of Appeal has ordered the release from prison of a barrister partner of a law firm jailed for breach of an undertaking to the court.
On 24 November, Sharaz Ahmed was committed to prison for contempt for six weeks, of which three were to take effect immediately, and fined £9,000.
The Court of Appeal allowed the appeal on 12 December and ordered his release, with reasons published nine days later outlining the procedural failures behind its decision.
Mr Ahmed is a designated member of London LLP Landmark Legal and at the time worked in a branch office where it traded as 12 Bridge Solicitors (which closed in 2022). He is also sole director and majority shareholder of No12 Chambers, an alternative business structure licensed by the Bar Standards Board.
In November 2019, while acting for a defendant in a possession claim, he gave an undertaking that Landmark would hold in its client account £1,600 paid monthly by the client – representing the contested rent – pending order of the court.
When the firm was finally ordered to pay what was then £57,600 to claimant Shamran Rehman’s solicitors three years later, No12 Chambers was now representing the defendant. Naseem Kadri, a Landmark partner who had joined in 2022, denied knowledge of the undertaking when asked to pay the money over.
It emerged six months later that the money had instead been transferred back to the client, who used £9,000 of it to pay No12 Chambers.
The claimant’s solicitors issued proceedings for contempt of court against Landmark. Ms Kadri was present at the first hearing in October, but Mr Ahmed was not, where the firm admitted “a gross breach of the undertaking”.
The hearing was adjourned to allow Landmark to purge the contempt by paying the money, plus £3,800 in interest and £7,200 on account of indemnity costs, which it had done by 24 November.
Mr Ahmed attended this hearing at Guildford County Court, representing himself, and turned down Her Honour Judge George’s offer to give evidence, despite her warning that he could be fined and/or sent to prison.
The judge found that Ms Kadri had failed to supervise the practice and ensure there were proper procedures in place, but was satisfied that the solicitor was unaware of the undertaking. She concluded that, when matters came to a head, Ms Kadri had taken “very swift action to remedy the breach”. She and the firm had also offered full apologies.
But Mr Ahmed – who had sought to argue that his role at Landmark meant he had no control over the money held in client account – was “in quite a different position”.
The judge focused on the fact he was a member of the LLP, saying: “Mr Ahmed in his submissions in mitigation has sought to minimise the impact of the breach of the undertaking. He attended court, he says, to apologise. The apology was, in my view, entirely half-hearted and lacking in substance…
“Mr Ahmed’s position is frankly untenable. He was the one who gave the undertaking to the court. He went away to obtain instructions, despite the fact he was a principal within the firm and presumably could have given the undertaking himself. Nevertheless, he did expressly obtain instructions and then gave the undertaking to the court.
“Whatever the procedures were in Landmark Legal, having given that undertaking it would appear that steps were not then taken by him to ensure that the undertaking was properly recorded in the firm’s records because when Miss Kadri tried to find out about the undertaking and check their records was no evidence of that undertaking.”
HHJ George found beyond reasonable doubt that Mr Ahmed deliberately breached the undertaking and had no mitigation.
She fined Landmark £20,000 and directed that a copy of her judgment be sent to the Solicitors Regulation Authority.
She made no further order in respect of Ms Kadri but found that Mr Ahmed’s breach so serious that imprisonment was the “only” appropriate punishment.
Mr Ahmed submitted multiple grounds of appeal but the Court of Appeal focused on the procedural failures.
While the court has jurisdiction to commit not only an LLP but also its principals, Lord Justice Baker said “it can only exercise that jurisdiction over any particular individual if the procedural requirements for a committal have been complied with, or waived”.
It was “plain that there were serious deficiencies in the procedure adopted on this occasion”.
The contempt application named Landmark Legal as the sole defendant and no notice was given to Mr Ahmed of the rights he would have as a defendant or the consequences of a finding that he had been in contempt.
He was not present at the October hearing and the order contained no direction to him to attend the adjourned hearing, or in fact any reference to him at all.
Baker LJ said: “At no point was the appellant told, as would be required if he was a defendant to the contempt proceedings, that he had the right to be legally represented, or that he was entitled to a reasonable opportunity to obtain legal representation and apply for legal aid.
“When the judge addressed him at the hearing on 24 November 2023, she observed that she could not make him give evidence but asked if he wanted to give evidence and gave him five minutes to think about it.
“She did not tell him that he was entitled but not obliged to give evidence, nor did she say he had the right to remain silent and decline to answer any question the answer to which may incriminate him.
“The fact that the appellant is a qualified and experienced lawyer does not obviate the requirement under the rules to inform him of these rights because, as Woolf LJ said in the Tuvalu case, compliance with the rules is ‘strictly insisted upon since the liberty of the subject is at stake’.”
Having decided not to give evidence, the claimant’s counsel had made submissions about Mr Ahmed’s conduct and he “was not allowed an opportunity to reply, in breach of the well-established practice that a person at risk of punishment in court should have the last word”, Baker LJ went on.
In the circumstances, it was “neither necessary nor appropriate to consider the substantive allegations of contempt”, nor the sentence.
“As the application against him was not brought in accordance with the rules, this court cannot be confident that there has been full and fair evaluation of the extent of his responsibility for the breach of undertaking.
“Furthermore, it remains open to the claimant to bring contempt proceedings against the appellant personally. In the circumstances, it would be wrong for this court to make any further comment.”
Lord Justice Warby concurred, highlighted two flaws: the absence of proceedings against Mr Ahmed and the application notice not setting out particulars of the case against him.
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