Cawson: Adverse inferences
A lawyer who failed to comply with court orders to hand over his firm’s files to the Solicitors Regulation Authority (SRA) is facing possible jail time after being found in contempt.
His Honour Judge Cawson QC, sitting as a High Court judge in Manchester, said he drew adverse inferences from Jakub Wojchiech Pawlak’s unwillingness to give evidence, which the judge suggested was because he feared arrest.
A Polish citizen, Mr Pawlak was a registered European lawyer who owned JP Law in Stockport.
But after the end of the Brexit transitional period, he was no longer able to hold a regulated position or practise as a recognised sole practitioner. He became a registered foreign lawyer and as such could not run JP Law.
The SRA said he nonetheless continued to offer legal services from 1 January 2021 and it intervened to close the practice in March.
It said he failed to co-operate with the process by not producing client files or a proper explanation as to why he could not, which continued after it obtained court orders compelling him to.
The regulator then applied to commit him to prison for contempt of court.
Mr Pawlak claimed the firm’s files and computers had been stolen from a removal van taking them to storage three days before the intervention, although the judge noted that “a police report provided in relation to this alleged theft only referred to the theft of high-value tools”.
In any case, Mr Pawlak insisted that he had closed the practice on 1 January 2021, with a conveyancing fee-earner taking 13 ongoing matters to another firm.
However, the SRA adduced evidence indicating that JP Law continued to operate this year, such as a clerk at Exchange Chambers in Leeds reporting that he had received instructions from the firm twice this year, a trainee at London firm Capsticks saying she had spoken to him about a JP Law client in the spring, and payments to staff in February referred to as wages.
Mr Pawlak claimed a former fee-earner must have been using the firm’s email address, that the trainee was mistaken, and that the payments were of old debts.
He did not appear at any of the hearings, sending counsel instead, and HHJ Cawson said [1] he was “amply satisfied” that Mr Pawlak at least had a case to answer in relation to the theft and whether he actually ceased trading.
“There are, in my judgment, a significant number of matters raised by the claimant’s evidence that do call for an explanation by the defendant, which the defendant has singularly failed to provide, and that which would have provided fertile ground for cross-examination.”
Mr Pawlak’s evidence about the “alleged theft… raises as many questions as it answers”, the judge said.
The police report “provides a paradigm example of the sort of point that could, had the defendant condescended to give evidence, have been explored in cross-examination”.
HHJ Cawson went on: “The defendant is properly to be regarded as having been available to give evidence. He may be in Poland, but there was nothing to prevent him making a further witness statement or witness statements, and/or attending to give oral evidence at the hearing of the amended application.
“There was nothing to prevent the defendant from travelling from Poland to Manchester, but even if he had had some difficulty in doing so, and if such had been requested, it would have been open to the court to consider whether the defendant might have given evidence by video link. However, there was no application for him to do so.”
As a result, the judge said he was entitled draw “adverse inferences” against Mr Pawlak, and to conclude that he “took a conscious decision not only not to attend any hearing in person, but also not to give evidence because he was aware that his evidence would not stand up to scrutiny, and that by attending at court, rather than remaining in Poland, he would be exposing himself to arrest in the event that he was found to have acted in contempt of court”.
As a result, he concluded that Mr Pawlak’s version of event was not a “reasonable” possibility. That meant he was in contempt of the court orders.
He adjourned sentencing to the end of the month, to give Mr Pawlak “an opportunity to carefully consider the terms of this judgment and the implications of it”, while making clear that an immediate custodial sentence of “significant length” was a possible outcome.