Senior judge criticises counsel for withdrawing from case without explanation

Marcus Smith J: Extremely concerning letter

A supervising judge has criticised counsel who withdrew on the eve of an important consequentials hearing for not specifying the concerns they had raised about the conduct of the trial judge.

Mr Justice Marcus Smith refused to adjourn the hearing, despite the withdrawal of Stephen Davies QC and Daisy Brown, whose failure also to appear before the trial judge to request his recusal – leaving it instead to a letter from their instructing solicitors – was “a deeply unhelpful and disruptive thing to do”.

Axnoller Events Ltd & Anor v Brake & Ors [2021] EWHC 828 (Ch) was the latest hearing in a case involving various related actions.

His Honour Judge Paul Matthews, sitting as a High Court judge in Bristol, handed down rulings on part of the claim and on preliminary issues on 25 March.

The consequentials hearing was listed for 31 March and Marcus Smith J said this was of “particular importance” in this case, at least to the defendants – known collectively as the ‘Guy parties’ – because it would also deal with directions for hearings in two connected cases due to be heard in late April and May.

The judge said that adjourning the consequentials hearing would mean those two hearings would have to be adjourned too.

The claimants were called the ‘Brake parties’. On 29 March, their solicitors, Ashfords, sent HHJ Matthews a letter asking him to adjourn the 31 March hearing because counsel “have found it necessary to withdraw”.

The letter said: “Ms Brown, having consulted with the Bar Council and senior colleagues, has concluded that it is her duty to withdraw. This is as a result of the judge’s conduct of the trial and the contents of the [25 March] judgment… which have made it impossible for Ms Brown to appear before the judge again.

“Mr Davies, QC, having considered his position with the benefit of advice from the Bar Council and senior colleagues, has concluded that there is a real possibility that he would be unable to fulfil his overriding duty of independence to the court, if he were to continue to represent the Brakes.

“Accordingly, he has withdrawn as counsel for the Brakes in relation to those matters for which he is instructed.

“Mr Davies, QC, having reviewed the judgment in detail, in light of the proceedings at pre-trial hearings and at the trial, has concluded that the Brakes (in particular, Mrs Brake) are unlikely to receive a fair trial in the ongoing proceedings if presided over by the judge.”

The solicitors said “counsel have indicated the usual reasons for withdrawal such as personal conflict or funding do not apply”.

They went on to suggest that HHJ Matthews choose to recuse himself, failing which the clients would consider an application for recusal, and concluded by requesting an adjournment.

HHJ Matthews asked Marcus Smith J – the supervising judge of the Business and Property Courts for the Wales, Western and Midland circuits – what to do. The “least worst” option, the latter explained, was for him to preside over the consequentials hearing.

Marcus Smith J called it “an extremely concerning letter”, pointing out that the Brake parties had previously failed with a recusal application – this was last year, over HHJ Matthews having been to school 45 years earlier with one of the Guy parties.

He said it was possible the judge’s conduct justified recusal – although there was nothing on the face of the 25 March rulings to indicate that or to explain counsel withdrawing – but said the problem was the failure to detail the allegations.

“Although Mr Davies, QC and Ms Brown might consider themselves under no obligation to represent the Brake parties, a point about which I say nothing but which I am certainly not endorsing, they are obliged to assist the court in relation to the very serious allegations that they have chosen to advance.”

The letter should have been “much more specific”, Marcus Smith J went on, pointing out that it had been four months since the trial – while the draft ruling was circulated on 19 March – and there was “ample opportunity to identify the issues which have caused or provoked the withdrawal of counsel”.

He added: “Much more to the point, the application to recuse should, no matter how serious and no matter how well-founded, have been made by either or both of Mr Davies, QC and/or Ms Brown before the judge…

“The refusal of these counsel even to appear before the judge to explain why he should hand the case over to another judge is a deeply unhelpful and disruptive thing to do.”

In the absence of any detail, the judge said counsel’s withdrawal was not a sufficient reason for an adjournment.

“It follows that I cannot simply proceed on the basis that previous counsel have proceeded properly or even professionally. It is bad enough to make very serious allegations in relation to the conduct of a trial judge entirely without particularisation.

“That is compounded, however, by the unusual and difficult to justify course of refusing to assist either the parties or the court in understanding the reasons underlying the withdrawal of previous counsel.”

This meant he could not proceed on the basis that previous counsel withdrew “in a manner consistent with their professional obligations, either to their own clients or to the court” – although he stressed that he was not saying they had behaved unprofessionally.

“That is not merely a matter not for me, it is simply not a matter on which I can express any concluded view.”

But the barristers’ actions had left their clients “horribly exposed”, Marcus Smith J said, adding that he had to assume the clients were “entirely uninvolved in the withdrawal of their counsel and that they have been left high and dry by their counsel through no fault of their own”.

Though this was the strongest argument in favour of an adjournment, the judge refused to grant one.

He cited the impact on the two upcoming hearings, the prejudice to the Guy parties, and the fact that the Brake parties continue to be represented by solicitors.

The judge said he would deal with the consequential matters with “as light a touch as possible”, meaning “the minimum consistent with doing justice to the interests of the Guy parties” and preserving the upcoming hearings.

He added that, for the moment and pending any recusal application, HHJ Matthews should continue as the judge for all the proceedings.

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