Farbey: Solicitor’s actions were outside the norm
A solicitor-advocate who made “aggressive” and “unfounded” allegations of misconduct in a bid to “besmirch” a judge has been ordered to pay her costs on the indemnity basis.
The decision of Mrs Justice Farbey is the latest to go against the solicitor, known only as ‘X’ or ‘AB/X’, who has been in long-running litigation with the Ministry of Justice and others.
In July, the High Court removed a nine-year anonymity order in his favour – although the decision is subject to appeal – meaning that the Solicitors Regulation Authority (SRA) could now investigate his misconduct in later costs proceedings.
That decision of Mrs Justice May recounted milestones in the litigation, which included a claim made against Costs Judge Jennifer James and The Transcription Agency (TTA) that Mrs Justice Farbey dismissed on 9 May 2023.
X brought his claim over the refusal of both to provide him with his personal data. Farbey J held that they were covered by a judicial exemption in the Data Protection Act 2018, the first time it has been considered by the High Court.
In her recent decision about costs in that case, Farbey J said X’s personal situation “does not justify the way he conducted the case against either of the defendants”.
She rejected his arguments of misconduct on their part and ordered that he pay their costs on the indemnity basis. X had made a wide-ranging and “aggressive pursuit of unfounded allegations of misconduct” against them and their lawyers that was out of the norm.
One example was the trial skeleton of X’s barrister’s, David S Boyle, which said: “Regrettably, the impression is that the defendants have taken the decision not to volunteer the whole truth in order to interfere with the just disposal of the case.”
Farbey J said: “In his oral submissions at the costs hearing, Mr Boyle denied that this passage was intended to convey that [Judge James] had misled the court. It is difficult to understand what else it could mean.
“To insinuate without any evidence that a judge whose career depends on honesty and integrity would mislead a court amounts to a grave attempt to besmirch her reputation. It warrants this court’s disapproval by the award of indemnity costs.”
Another instance, she recounted, was an implication in the skeleton that Judge James “did not have the courage to resist improper behaviour by the government and its lawyers but was carried along in what [the barrister] called a state trial”.
Farbey J said: “To insinuate without any evidence that a judge whose career depends on fearlessness and independence of mind would not stand up to the government amounts to a grave attempt to besmirch her reputation. It warrants this court’s disapproval by the award of indemnity costs.”
There were “other, similar attempts to besmirch the judge’s character and reputation”, she went on.
Farbey J ordered the claimant to pay, as interim costs, 90% of each defendant’s budgeted costs and 50% of their incurred costs. It was not clear from the ruling whether the £99,000 this amounted to was before or after the reductions were made.
Judge James was represented by Will Perry, instructed by the Government Legal Department, and TAA by Dan Stacey, instructed by Kennedys.
In her July ruling, Mrs Justice May found that X “persistently” accused Judge James of bias, and shouted and swore at counsel.
in 2021, Judge James reduced his bill by 70% for misconduct, saying it would have been more but that was what the Ministry of Justice had sought.
X’s various claims and applications for permission to appeal have all been rejected and, in March this year, Mr Justice Eyre made an extended civil restraint order against him in the costs proceedings.
