May: Public interest outweighs the private
The High Court has removed a nine-year anonymity order in favour of a solicitor, meaning that the Solicitors Regulation Authority (SRA) can now investigate his misconduct in later costs proceedings.
The Ministry of Justice argued before Mrs Justice May that, while the order was originally justified, it now could not refer the solicitor, known as AB/X, for disciplinary action after he was found to have shouted and sworn at counsel, leading to a hearing being abandoned.
May J recounted that, in 2003, the solicitor’s wife died in “distressing circumstances”, leaving two very young children.
“It came to the claimant’s attention that the coroner had been in contact with an official at the Home Office about his wife’s death, accordingly he made various subject access requests to the MoJ relating to his personal data.
“By two sets of proceedings issued against the MoJ in 2006 and 2007, the claimant sought damages for delay in producing documents, together with an order for disclosure and destruction.”
The claims were consolidated and came before Mr Justice Jeremy Baker in 2014, who made the anonymity order on the basis that the family’s privacy outweighed open justice on this occasion.
After giving judgment, he ordered both parties to pay some of each other’s costs. Detailed assessment proceedings began in January 2017; in 2021, Costs Judge James reduced the claimant’s bill by 70% for misconduct, saying it would have been more but that was what the MoJ had sought.
She found that, at a hearing in 2019, at which he appeared as solicitor-advocate in his own case, AB/X was “shouting and swearing at counsel for the MoJ and the solicitor from the [Government Legal Department], before twice walking out and coming back in, causing the hearing to be abandoned”.
He also failed to inform Cavanagh J, when making an out-of-hours application for an injunction, that Johnson J had already refused, as totally without merit, his application to set aside Judge James’s directions order.
Other misconduct was “persistently accusing Judge James of bias” and charging hourly rates “many times the reasonable and proper amount”, billing a non-qualified fee-earner well in excess of those for a grade A solicitor.
Judge James said the level of fees charged in drafting, checking and signing the claimant’s bill was “an overcharge to the public purse so egregious that in its own right it is both unreasonable and improper”.
She also found that he signed a bill of costs, thereby certifying that the indemnity principle had not been breached, when there had been “very considerable” overcharging.
Judge James later also considered the costs of entirely separate proceedings between the same parties. She rejected AB/X’s application to recuse herself from both claims and issued an unless order for him to start detailed assessment proceedings.
The claimant’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 (ECRO) against AB/X in the costs proceedings.
The MoJ argued that, given the passage of time, there was “no remaining justification” for concealing the identity of the claimant, while it meant the MoJ was unable to report his conduct to the SRA.
Its counsel said the purpose of the anonymity order was “certainly not to protect the claimant from the disciplinary consequences of any subsequent professional misconduct”.
AB/X’s counsel insisted the SRA could still take action, but May J considered that any investigation “must be at least significantly hampered by continued anonymity”.
“The fact that the court has assessed as necessary the making of an ECRO to curb the claimant’s activities in the costs arena is also a matter to be considered as significant when balancing the public interest and any private interest.
“Further, the current ECRO has the name of the person who is subject to the court’s control anonymised, which is bound to hamper the proper administration of the ECRO itself.”
The judge continued that the evidence given by the claimant “comes nowhere near establishing the weight of private interest necessary to counterbalance the public interests”.
She said: “In this case, the matters giving rise to the original claim have now faded into the background, overtaken in noise and volume by the claimant’s subsequent conduct of the costs and other litigation.
“Neither Jeremy Baker J’s original judgment nor any costs or other judgment handed down since refers to the content of the material which first gave rise to the claim. Thus, removing anonymity will not make public that which the claimant succeeded in suppressing through his original claim.”
The process of litigation “will frequently be accompanied by distress, often severe distress, in consequence of the circumstances which have occasioned it”, May J added.
“Conferring anonymity can do nothing to relieve the upset attendant on the underlying circumstances; meanwhile the public interest demands that the operation of justice be open and transparent.”
AB/X also submitted that removing anonymity would require him to explain publicly the medical reasons that explaining his conduct that caused the hearing to be abandoned, engaging his rights under the Equality Act not to be discriminated against.
May J said: “Appreciating, as I do, the difficult and potentially stigmatising nature of the claimant’s health condition, nevertheless I cannot find that the claimant’s article 8 and/or Equality Act rights arising in connection with it are sufficiently weighty in the balancing exercise.
“As the costs judge put it at paragraph 51 of her judgment: ‘…if he found proceedings in the SCCO too much, he could and should have sent someone else instead of causing a day-long hearing to be abandoned…’.
“Moreover… the effect of his health condition upon his behaviour that day is a matter that the claimant should already have reported to the SRA. I would also have expected him to acquaint the partners/co-directors in his own law firm which was on the record as acting for him on that (and every other) occasion.”
AB/X can now appeal before his anonymity is removed.
UPDATE: On 6 December 2023, AB/X was named at Robin Makin, a well-known Liverpool solicitor.
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