Non-party condemned by recorder was victim of “unlawful judicial act”

Smith: No justification for making the adverse findings 

A non-party to a property dispute, condemned in his absence by a recorder for dishonest conspiracy, was the victim of an “unlawful judicial act” which breached his human rights, the High Court has ruled.

Mrs Justice Joanna Smith said it was “extremely unusual in a civil case for the court to make serious findings (with potential legal consequences) on unpleaded matters against a non-party”.

She said the adverse findings made by Recorder Geraint Jones KC against Ronald Albert Popely were all made in the context of “the narrative of a dishonest conspiracy” involving Mr Popely.

The High Court heard that the accusations were made by the recorder in April 2019, following a five-day trial of proceedings brought by Ayton Limited, a company, against Alan Mosley over the ownership of White Owl Barn, occupied by Mr Popely’s brother John (JP) and family. JP was in control of Ayton.

Joanna Smith J said the recorder identified Ronald Popely’s “malice towards his brother as providing the motivation for the conspiracy”.

Mr Popely’s “funding of the purchase of the property (through the agency of Mr Mosley), together with the secret procurement of a liquidator for Ayton and his likely involvement in the generation of false invoices (amongst other things)” were identified as the “means of pursuit of that dishonest scheme”.

Joanna Smith J went on: “In so far as the funding of subsequent litigation involving Mr Mosley was concerned, the judge held that Mr Popely was willing to ‘bankroll’ such expenses because Mr Mosley was his ‘stooge’ in and about the purchase of the property.

“In my judgment, the adverse findings together form the complete picture of the dishonest scheme said by the judge to have involved Mr Popely.”

The judge said Ronald Popely was “neither party to, nor witness in”, proceedings brought in Central London County Court over ownership of White Owl Barn.

His grounds of appeal identified 17 occasions when the recorder made adverse findings of fact against him and argued that he had been deprived of “fundamental procedural protections” under the European Convention on Human Rights and the common law.

The recorder’s findings amounted to a “judicial act” which was unlawful under the Human Rights Act 1998, he submitted.

Mr Popely also appealed against an order in which recorder dismissed an application that he should recuse himself from hearing a non-party costs application against Mr Popely, joined to the proceedings specifically for the purposes of costs.

Delivering judgment in Popely v Ayton and another [2022] EWHC 3217 (Ch), Joanna Smith J said: “I consider that the adverse findings must be viewed as a whole; taken together they add up to a complete narrative which is both extremely serious and clearly capable of engaging article 8 and article 6 rights [to private life and fair trial, respectively], together with the entitlement to common law protections.

“In my judgment, there was no justification for making the adverse findings given that Mr Popely was not a party to the proceedings.

“However, once the judge had decided that he was going to make them, he should have canvassed with the parties how the fundamental principles of procedural fairness could then be met.”

Joanna Smith J said the adverse findings “amounted to an unlawful judicial act” which required an appropriate remedy.

She ordered that the findings should be “set aside and treated as if they had never been made”.

Redaction was impossible in a public judgment. “However, if Mr Popely needs to explain himself in future, then he will have a judgment of this court to which he can draw attention.”

Joanna Smith J set aside the recorder’s order joining Mr Popely as a party to a non-party costs application.

Having found the trial process to have been “wholly unfair” to Mr Popely, his recusal application was redundant. However, had the matter been live, the judge said she would have granted Mr Popely’s appeal.

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