Fordham: Clear duty to the court
A litigant in person who made a ‘without notice’ application to move property transactions to completion, blaming the other side’s solicitors for not replying to him, mislead the court, a judge has found.
Mr Justice Fordham ruled that Alexander Kuznetsov withheld correspondence sent by GLS Solicitors and could also “perfectly well have notified” the firm of his application but chose not to.
Earlier this month, Mr Kuznetsov made the application seeking orders as to how transactions arising from a property auction should proceed with the aim of effecting completing, exhibiting emails to which he said GLS, acting for the defendants, had not replied.
The judge would only adjourn the case, requiring notice and service, and giving GLS Solicitors an opportunity to respond.
“I said that any court would be concerned about being asked to make orders in a case, involving parties who were not before the court, and who had not specifically been told that the application for the orders was being made.
“This case has become a textbook example of why all of that is so very important. I am very glad that I took the course that I did.”
GLS responded – though it was not instructed to act in any civil proceedings or attend the hearing – with a letter showing how it had in fact responded to the emails Mr Kuznetsov said it had not,
The judge said the information showed that GLS had told Mr Kuznetsov that it could not deal with unrepresented parties. He disputed the firm’s insistence that he instruct solicitors.
The auction house told him that it had panel solicitors who could act, asking the buyer: “Why don’t you appoint a solicitor and get this done?” Instead, Mr Kuznetsov sent a letter before claim and then made his application.
Fordham J found that the claimant had failed to include in his application much of the correspondence, including GLS’s response to the letter before claim, as well as the existence of special conditions of sale.
He also did not disclose that he was told repeatedly that he needed to instruct solicitors and that his failure to do so was why GLS refused to respond to later emails.
The judge said: “It is obvious from this picture that the court now has, that the claimant knew and knows perfectly well what the impediment was and is, and how he needed to and still needs to deal with it.
“It has been open to him to take that course. He is known that for more than two weeks and it has been repeatedly reiterated.”
Mr Kuznetsov sought to persuade the judge that the option of ‘DIY conveyancing’ was “an applicable legal entitlement, which he was entitled to adopt as a way forward, in the context of the completion of these auction sales”.
As an order would mean completion of the transactions before the legal issues were determined, the judge said he had to ask whether there was a “high degree of assurance” of the claim’s success.
There was not, he said, while damages would not be an adequate remedy for either side. “Further, the balance of convenience and justice in the circumstances of this case decisively comes down against the grant of any order.”
In any case, Fordham J continued, Mr Kuznetsov’s deliberate disclosure failures and failure to notified GLS about the application were “serious and significant” and on their own justified dismissing the application.
“The duty of full and frank disclosure is fundamental. It is also obvious. The claimant, moreover, does not present as naïve, either in the email exchanges that I have now seen fully; nor in his court documents; nor in his written and oral submissions.
“He would be able readily to test it: would he not be outraged if the other parties to transactions came before a court, without any reference to him, presenting a very selectively produced set of materials, to try get court orders to permit a course or to mandate it?
“You do not need to be a lawyer to understand the need for a judge to be given a full and fair picture, and the need for basic fairness. These are obvious, basic expectations of anyone who comes into contact with legal proceedings, which operate to try to achieve justice, in the public interest.”
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