icj13

The Indictment in the embezzlement of £720 billion public money in 2013 and annually, relies on transcript evidence of Treason, Perjury & Fraud, see below, being routinely committed by public servants judges, solicitors & barristers against the public, litigants in persons.  The public have the right to deny jurisdiction to any proceedings before a single judge and demand 25 jurists to be present in a Grand Jury firstly and and then a Trial Jury

 

Lord Justice accepts High Treason is routine in UK courts, contrary to the TREASON ACT then thanks Mrs Berry for arresting him for Treason before abandoning court 

IN THE COURT OF APPEAL Claim No. B3/2012/0034

(QUEEN’S BENCH DIVISION)

ON APPEAL FROM CENTRAL LONDON COUNTY COURT

His Honour Judge Saggerson

Case No. 8WD00336

Royal Courts of Justice

Strand

London

WC2A 2LL

Wednesday, 3rd July 2013

Before:

LORD JUSTICE KITCHIN

Between:

MISS SADHANA CHAUDHARI

Claimant/Appellant

-v-

MRS FOSTER

Defendant

______________________

The Claimant appeared In Person, assisted by: MRS NEELU BERRY

The Defendant did not attend and was not represented

______________________

DISCUSSION AFTER JUDGMENT

Transcribed from the Official Tape Recording by

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Number of Folios: 13

Number of Words: 940


THE JUDGE: Thank you very much for all of your assistance this morning, Mrs Berry.

MRS BERRY: I would like to go over some of the factual [errors?], my lord, if I may. My lord stated at the beginning that the road traffic accident took place on 3rd December 2005. My lord, this is evidence of my lord’s predetermination. My lord has copied the error from His Honour Judge Saggerson and the rest of the decision—

THE JUDGE: What is the date of the accident, because that is an error which I am perfectly prepared to correct in the transcript judgment?

MRS BERRY: The point here is, my lord—

THE JUDGE: What do you say the date was?

MRS BERRY: The point being, my lord, the predetermination that my lord has done here [in copying?] the error of His Honour Judge Saggerson—

THE JUDGE: What do you say the correct date was?

MRS BERRY: The correct date, my lord, is 3rd February 2005.

THE JUDGE: 3rd February 2005, thank you. Are there any other factual errors?

MRS BERRY: This is evidence of no application of mind, my lord. The other errors, my lord—

THE JUDGE: What other errors of fact do you say that I have made?

MRS BERRY: The other errors of fact, my lord, are the medical evidence of the treating neurologist, Dr Gordon Ingle, of the National Hospital for Neurology and Neurosurgery, which Her Honour Judge Lang had evidence that he was right and all the other experts were wrong in that the neurological aspect of her injury… and he agreed with the neuropsychological report of the neuropsychologist, Julia Morris, [inaudible] the matter which was before Judge [Baucher?]. That error has again been repeated by my lord this morning in a predetermination. My lord—

THE JUDGE: It is not a predetermination, Mrs Berry. I want to make it absolutely clear to you. There are various aspects of the judgement of Judge Saggerson and if in respect of them no particular ground of appeal is raised, then those are matters to which I have inevitably had to refer. For you to say that I have come to this with some sort of predetermination is quite wrong. Now, I am asking you if there are any particular factual errors which I have made which you would like me to correct in my judgment, but I am not prepared to revisit my judgment as a whole. I want to make that quite clear.

MRS BERRY: My lord, the key pivotal [point?] of the appeal is that the evidence of the treating neurologist, Dr Gordon Ingle, was omitted before His Honour Judge Saggerson. It was not in the trial bundle. This is the perversion of the course of justice that that has been referred to the claimant all the way through before Judge Baucher, Judge Mitchell, Judge Lang and all these perversions and perjury of the medical evidence which she had which have been concealed, which have been denied to her by all the courts, including this court here today, constitutes the perversion of the course of justice continuing in the Court of Appeal here today. Litigants in person, victims of personal injury being denied their rights to those damages in this country out of routine, being robbed of their rights to compensation because of the power of the insurance companies is an [inequality?] of arms, being denied their human rights to their right to life and a right to their personal life, their family life. My lord, these are serious issues here that my lord has omitted to address here today. There is no independent appeal here today; it is just a repetition of what has taken place in the lower courts. My lord, this cannot be continued in this country. People are being denied their rights to appeal because the issues are being predetermined, they’re being ignored. This is a pantomime. This is a theatrical. No appeal court judge is looking at the appeal issues, the grounds of appeal. The grounds of appeal are that the lower court has got it wrong, my lord.

THE JUDGE: Thank you very much. Thank you very much for your assistance, Mrs Berry.

MRS BERRY: And, my lord, the issue of costs has not been addressed here. She is not liable to pay costs for the perjury committed by the defendant’s solicitors and the concealment of medical evidence to pervert the course of justice. She is not—

THE JUDGE: Thank you very much, Mrs Berry.

MRS BERRY: —prepared to pay for that crime and—

THE JUDGE: I have concluded that an appeal has no real prospect of success.

MRS BERRY: My lord, I have a citizen’s right for your arrest here right now for the treason that you have committed here today.

THE JUDGE: Thank you, Mrs Berry. I understand.

MRS BERRY: I will exercise that right.

THE JUDGE: Thank you very much.

MRS BERRY: I am arresting you now for—

[Court adjourns]

FRAUD In the High Court, Royal Courts of Justice London UK 23 May 2013 by Mr Justice Sycamore who gives audience to the Counsel for the Prosecuting local authority, which is not a party to the Judicial Review proceedings against a Judge & Crown Court and denies jurisdiction in the Criminal Court of Appeal despite confirmation in a letter from the Supreme Court.  

High Court Judge denies justice by giving audience to Prosecuting Council in an undefended Judicial Review application despite false prosecution by Local Government without law in Magistrate Court & Crown Court, denying appeal in Criminal Court of Appeal in FRAUDULENT proceedings

IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION

Claim No. CO/2222/2013

Between:

Before:

HIS HONOUR JUDGE SYCAMORE Sitting as a Judge of the High Court

[SADAMA?] CHAUDHARI -and- [RAJA?] KUMAR -v- SNARESBROOK CROWN COURT -and- LONDON BOROUGH OF REDBRIDGE

______________________

The Applicants appeared In Person, assisted by their McKenzie Friend

The Respondents did not attend and were not represented Counsel for the Interested Party:

______________________

First Applicant

Second Applicant

Respondent

Interested Party

MRS NEELU BERRY

MR MARK HIMSWORTH

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TRANSCRIPT OF PROCEEDINGS UP TO JUDGMENT

Transcribed from the Official Tape Recording by Apple Transcription Limited Suite 104, Kingfisher Business Centre, Burnley Road, Rawtenstall, Lancashire BB4 8ES Telephone: 0845 604 5642 – Fax: 01706 870838

Royal Courts of Justice Strand London WC2A 2LL

Thursday, 23rd May 2013


THE JUDGE: Sit down for a moment. Which is Sadama Chaudhari? MISS CHAUDHARI: [Inaudible] THE JUDGE: All right and you are Raja Chaudhari? MRS BERRY: Raja Chaudhari is my [inaudible]

THE JUDGE: Yes, but the finding of the court is against Sadama Chaudhari. That is right, is it not?

MRS BERRY: It’s against both of them.

THE JUDGE: Is it? I only have one. This is your renewed application for permission to apply for judicial review and I have received by email this morning a skeleton argument. Mr Himsworth, you are appearing for the London Borough of Redbridge.

MR HIMSWORTH: I am. I understand—

THE JUDGE: No other of the parties are here.

MR HIMSWORTH: Sorry?

THE JUDGE: No other parties are here.

MR HIMSWORTH: No other parties are here, no.

THE JUDGE: No.

MR HIMSWORTH: This is an application for judicial review of, effectively, a substantive appeal heard in the Crown Court.

THE JUDGE: Yes. There was a direction when permission was refused—

MR HIMSWORTH: Yes.

THE JUDGE: —for the Crown Prosecution Service to be served as an interested party.

MR HIMSWORTH: That must have been an order in error. The Crown Prosecution Service have not formed any part whatever—

THE JUDGE: No.

MR HIMSWORTH: —in these proceedings. The prosecution was always—

THE JUDGE: Y es.

MR HIMSWORTH: —made by the London Borough of Redbridge. It must have been an error on the part of Mr Justice [inaudible]

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THE JUDGE: Y es.

MR HIMSWORTH: —to order that the Crown Prosecution Service were served.

THE JUDGE: I think it was because in the claim form there is a suggestion that the court should have allowed the CPS to be heard. Who is going to speak to me in the main on this?

MRS BERRY: I am the sister of Chaudhari and the sister-in-law of Kumar.

THE JUDGE: But I need to hear from one of the.... Were there two defendants in this?

MRS BERRY: In the original conviction and the appeal, yes.

THE JUDGE: Can I just say, whoever is going to address me and I will come to that in just a moment, I am quite content that you remain seated.

MRS BERRY: Okay. THE JUDGE: It is very difficult when you are not used to the courtroom to stand up and

have [inaudible] so I do not take the slightest bit of offence if you sit down, all right. MRS BERRY: Thank you.

THE JUDGE: I am hearing from Mr Himsworth first just so that he can help me make sure that I have seen all of the papers, but the notice of appeal I have relates to Sadama Chaudhari. That is the only Crown Court document I have.

MR HIMSWORTH: It is right to say that at the beginning of this month, I believe, there was notice given of an application to appeal to the Court of Appeal—

THE JUDGE: Y es.

MR HIMSWORTH: —in respect in fact of an appeal against Mr Justice Cranston’s refusal of permission of the first application to this court arising out of the proceedings in the Crown Court at Snaresbrook. That is my understanding—

THE JUDGE: Y es.

MR HIMSWORTH: —and I assume there are documents in respect of that. The hearing today and I have attempted to speak but have not been very successful at speaking [inaudible] to get to the issue in the case today, this is, the interested party understands, effectively, a second application for judicial review of proceedings in the Crown Court at Snaresbrook—

THE JUDGE: Y es.

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MR HIMSWORTH: —in which, yes, both Mr Kumar, who sits furthest from me, and Miss Chaudhari, who sits one closer, were the defendants. So, they were prosecuted in both the Magistrates’ Court and then they appealed—

THE JUDGE: All right.

MR HIMSWORTH: —to the Crown Court, as they were entitled to and convicted there. The claim form, if my lord does not have it and there certainly is one which is brought at least before my lord—

THE JUDGE: Y es. 

MR HIMSWORTH: —starts with an application for urgent consideration— 

THE JUDGE: Yes, I have seen that. 

MR HIMSWORTH: —in the name of both Miss Chaudhari— 

THE JUDGE: Y es.

MR HIMSWORTH: —and Mr Kumar and then leads into a bundle which is paginated and indexed and starts at page 2a with the claim form in which both of those individuals are the claimants.

THE JUDGE: Was the finding in the Crown Court in relation to both? 

MR HIMSWORTH: Yes. 

THE JUDGE: Yes and the findings were the same, were they? 

MR HIMSWORTH: Yes.

THE JUDGE: I think all I am missing then in fact is the result of the appeal— 

MR HIMSWORTH: In the Crown Court? 

THE JUDGE: In the Crown Court— 

MR HIMSWORTH: Ah.

THE JUDGE: —for Mr Kumar. 

MR HIMSWORTH: I was prosecution counsel— 

THE JUDGE: Y es. 

MR HIMSWORTH: —[inaudible] Crown Court so I can certainly confirm— 

THE JUDGE: Oh yes.

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MR HIMSWORTH: —[inaudible] and no doubt there will be papers that they were both convicted and ordered to pay fines and costs. The only formal documentation in respect of Mr Kumar and fines and so on is in respect of the original conviction in the Magistrates’ Court. That is the only one that I have.

THE JUDGE: All right, but there is an identical document then, is there, for Mr Kumar in terms of the result? Do you have that with you?

MR HIMSWORTH: I have the Magistrates’ Court conviction.

THE JUDGE: No, no, I am sorry, I was asking the claimants whether they have that. Do you have the Crown Court document that relates to Mr Kumar there because it is not in my papers, you see?

MRS BERRY: I have it in the lower court.

THE JUDGE: No, it is the Crown Court. It does not matter. If everyone is content that it was... I am going to ask Mr Himsworth again just to fill in some gaps for me. What has happened in terms of any appeal from the Crown Court decision?

MR HIMSWORTH: I will be corrected if I am wrong. As an interested party we have not yet—

THE JUDGE: Y es.

MR HIMSWORTH: —been notified of a great deal of the progress of this. I have seen documentation which would tend to suggest an application has been made to the Court of Appeal in respect of Mr Justice Cranston’s order of this court—

THE JUDGE: That is the Court of Appeal Civil Division? 

MR HIMSWORTH: Presumably. 

THE JUDGE: Y es.

MR HIMSWORTH: Yes. I do not know whether there has been a response to that. There was an earlier application, I believe, but I have never seen any paperwork in respect of it, we were never troubled with the paperwork in respect of it, from both the Court of Appeal Criminal Division, who, as I understand it from the claimants’ own papers, said “We do not have jurisdiction over this matter.”

THE JUDGE: Well, it would be a case stated, would it not? 

MR HIMSWORTH: Quite. 

THE JUDGE: Y es. 

MR HIMSWORTH: There would be appeal against conviction on indictment, obviously— 

THE JUDGE: Yes, but his was an appeal—

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MR HIMSWORTH: —but this was not one.

THE JUDGE: No, that was my understanding.

MR HIMSWORTH: The only route of review would be not to the Court of Appeal but to this court by way of case stated and the date for that would have started running in—

THE JUDGE: I think the refusal of permission suggests it would be Court of Appeal Criminal Division.

MR HIMSWORTH: It does, but I think that too is in error—

THE JUDGE: Y es.

MR HIMSWORTH: —I would suggest—

THE JUDGE: Well, my understanding is it would be case stated.

MR HIMSWORTH: Yes, it is not a Court of Appeal matter. The Court of Appeal matter, the only one that I understand is now extant is—

THE JUDGE: Extant to the divisional court, but this court has no jurisdiction. There is an alternative remedy—

MR HIMSWORTH: Yes. 

THE JUDGE: —which is by way of case stated to the divisional court. 

MR HIMSWORTH: There might have been a good deal of time ago— 

THE JUDGE: Y es.

MR HIMSWORTH: —the interested party would say. The application has always been and was launched before the conclusion of the Crown Court proceedings and was always for judicial review rather than for the Crown Court to state a case. On my understanding there has never been an application to the Crown Court to state a case.

THE JUDGE: I am assuming that Miss Chaudhari, who sits closest to me, is seeking, effectively, to be a McKenzie Friend.

MR HIMSWORTH: Mrs Berry sits closest to you—

THE JUDGE: Sorry, Mrs Berry.

MR HIMSWORTH: Of all of the ladies Mrs Berry sits closest to me. She seeks to, yes, as she did in the Crown Court and as she did in—

THE JUDGE: All right.

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MR HIMSWORTH: —the last oral application.

THE JUDGE: So, how do I spell your name please? Please sit down.

MRS BERRY: B-E-R-R-Y.

THE JUDGE: Mrs Berry and you are the sister or sister-in—

MRS BERRY: Sister of Chaudhari.

THE JUDGE: Sister of Chaudhari, yes, and, Mr Himsworth, do you have any difficulty with Miss Berry appearing, effectively, as a McKenzie Friend?

MR HIMSWORTH: Whatever speeds the resolution of this matter— 

THE JUDGE: Y es. 

MR HIMSWORTH: —I am perfectly content with.

THE JUDGE: Do I understand your position, Mr Himsworth, putting it briefly (you will have an opportunity to respond), that the court should not entertain an application for permission because an alternative remedy is provided by way of an application to state a case?

MR HIMSWORTH: Yes. There is in fact an acknowledgement of service, I do not know whether my lord has seen that, entered as directed or at least as directed to the Crown Prosecution Service rather than—

THE JUDGE: No, I have not. The only acknowledgement I have received that has made its way to my papers is from the first defendant—

MR HIMSWORTH: Yes.

THE JUDGE: —indicating it does not wish to make a submission.

MR HIMSWORTH: Understandably—

THE JUDGE: Y es.

MR HIMSWORTH: —in the circumstances.

THE JUDGE: So, that is the only document I have.

MR HIMSWORTH: The only paper copy, I am afraid, that I have I can hand forward [inaudible] filed and served about a fortnight ago.

THE JUDGE: No, I have not seen that. So, was the matter before Mr Justice Cranston in essentially the same terms as—

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MR HIMSWORTH: Certainly the interested party would say substantially identical and there was an oral [review of an application?] in that claim which was refused with costs of attendance—

THE JUDGE: On the basis we are just discussing— 

MR HIMSWORTH: Yes. 

THE JUDGE: —that the alternative remedy was—

MR HIMSWORTH: I have a copy of the order. I do not purport to remember, although I did appear. It was simply dismissed out of hand. I do not wish to make representations. I do not wish to assure the court of one thing—

THE JUDGE: No. MR HIMSWORTH: —or another in respect of this. 

THE JUDGE: Y es. 

MR HIMSWORTH: It may well be— 

THE JUDGE: You do not have a transcript of the judgment? 

MR HIMSWORTH: No. No.

THE JUDGE: Yes, thank you very much. Mrs Berry, there has been a previous application for judicial review and I am told that is the subject now of an application which has been made to the Court of Appeal. Is that correct?

MRS BERRY: My lord, if I may go back a few steps.

THE JUDGE: No, no, I want to ask some questions.

MRS BERRY: It is very misleading what Mr Himsworth has said.

THE JUDGE: Well, I am asking you, was there a previous application for judicial review?

MRS BERRY: That was a completely different set of circumstances and there was a complete change of landscape, but [inaudible]

THE JUDGE: I am sorry, you are going to have to answer my question so I can understand what you are going to say to me. As I understand it, there was an application in respect of the matter before the Crown Court which was heard by another judge in respect of which you have now sought permission to appeal to the Court of Appeal.

MRS BERRY: The proceedings that were before Judge Cranston before the trial took place—

THE JUDGE: Y es.

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MRS BERRY: —to do with the preliminary application— 

THE JUDGE: I see. 

MRS BERRY: —without law and jurisdiction in the Crown Court.

THE JUDGE: Do you understand that the reason that permission was refused on the papers was because judicial review is inappropriate where the rules and statute provide a different remedy and in a case of this nature if somebody wishes to challenge a decision of the Crown Court at this type of hearing where the judge is sitting in an appeal with two Justices of the Peace, the procedure is what is known by way of case stated to the divisional court. That has not been done, as I understand it.

MRS BERRY: Well, I have a letter from the Supreme Court.

THE JUDGE: I have seen that. That is in the bundle.

MRS BERRY: Correct, which states that the jurisdiction lies in the Criminal Court of Appeal.

THE JUDGE: Well, my understanding is that the jurisdiction would be by way of case stated to what is called the divisional court, but, either way, there is a remedy provided and judicial review is not available. It is what is called a remedy of last resort. It is not available where there is another approach to be adopted.

MRS BERRY: Well, the problem is that the first judicial review [inaudible] there was no law for the proceedings in the Crown Court on the basis that there was a false prosecution and it was out of time, it was served out of time, as Mr Himsworth will confirm to the court.

THE JUDGE: Yes. Well, that all may be, but there is a procedure provided for that to be considered by a higher court and that is the procedure called case stated. You cannot simply use judicial review when there is another way to deal with it.

MRS BERRY: Well, the original way that the Crown Court had told the applicants to deal with it was by way of filling out a form NG which they provided for them—

THE JUDGE: Y es. 

MRS BERRY: —which they filed out and which hasn’t been processed by the Crown Court

to date. That form NG normally goes to the [inaudible]

THE JUDGE: Well, I have to tell you that, whatever you are going to say to me, the position is that the court cannot entertain or grant permission for judicial review in circumstances in which there is an alternative remedy provided. I have read the skeleton argument that you sent in. Is there anything you want to add to that?

MRS BERRY: Well, I am looking at the order by Mr Justice Males—

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THE JUDGE: Y es.

MRS BERRY: —and this is the—

THE JUDGE: I have read that. I have it in front of me.

MRS BERRY: —application for permission to apply for judicial review, which brings us to the court here today.

THE JUDGE: Y es.

MRS BERRY: He says that it is too late and there are no good reasons to extend the time. The delay was caused as a result of the form NG having been handed to the manager of the Crown Court and Judge [inaudible] having taken that bundle home and [inaudible] to return it to him and that bundle hasn’t found its way to the Criminal Court of Appeal. The second point again is an error, but we wish to challenge the decision of the Crown Court and the proper course was to appeal to the Court of Appeal Criminal Division and that was the form NG. We had done that as of 31st January 2012. Point number three, it says the immediate relief was the fact that the applicants are being pursued for being committed to prison for non-payment of fine whilst they have not got their appeal bundle returned to them and it hasn’t been processed to the Criminal Court of Appeal and, therefore, the fourth point is also [inaudible] says that the Crown Prosecution Service should be served and, as we heard from Mr Himsworth, that appears to be incorrect as well. So, today our application is for a remedy that the fines have been issued without law. There is no such law as Multiple Occupation Act under which these fines [inaudible] pages 11 and 12 of the bundle of this application for judicial review. It’s a point of law that the applicants are relying on, there being no law under which they have been fined. There is no HMO [inaudible] at the property and the whole prosecution has been without law. This evidence was before the Magistrates’ Court as well as the Crown Court. The prosecution, Mr Himsworth, had also [inaudible] the magistrates to [inaudible]. He had also advised [inaudible] court that the charges were served out of time, which makes the whole prosecution null and void in law and also a miscarriage of justice and it is grossly wrong for this to continue any longer and the fines today must be set aside, otherwise the miscarriage of justice will just continue without law. My sister was hospitalised during a Crown Court hearing, which really ought not to have been allowed to continue. Mr Himsworth is well aware that there is no such law as Multiple Occupation Act and the issue of jurisdiction also is that if there is no law, that it is a made up law, a fictitious law, then there is no jurisdiction in any court, it is null and void in law and it cannot stand and it must be set aside. This is an application which is undefended and unopposed on the grounds that there is no law, there is no basis in law for these fines and there have been earlier opportunities missed before Mr Justice Saunders and Mrs Justice Thirlwall to have stopped the trial without law and those were missed. Judge Cranston has stated that the applicants must have been guilty; otherwise they would not have been prosecuted and fined. That just summed up his attitude, he wasn’t interested in going into any details about whether there was a law or not or whether there was a HMO or not, he was not interested and, therefore, the applicants have been denied a legal process. They have been falsely prosecuted, convicted and fined [inaudible] must be set aside otherwise they risk false

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improvement and the risk of further miscarriages of justice. As it is they are entitled to damages for this false prosecution and false conviction.

THE JUDGE: All right. Thank you. Let me hear what Mr Himsworth has to say in reply and you can have the final word.

MR HIMSWORTH: I have the original acknowledgement of service for the original application here, which certainly makes very plain what has always been the interested party’s position, which was that, were there to have been at that stage convictions, the avenue was case stated. It is in black and white, I have it here. This is, as my lord has observed, an extraordinary remedy. It is, effectively, the second attempt to use this court’s jurisdiction in respect of the same substantive issue and it uses judicial review rather than the case stated mechanism. Even if one were to consider it or to begin to consider it on the merits, there is not in the interested party’s submission even the beginning of an arguable case. The decision on paper was, rightly we say, one in which in Mr Justice Males considered that the case was to be totally without merit and he said there are alternative remedies and pointed to the lapse of time since conviction and we are well over a year now. We say this is an application now being made really because attempts are being made now to levy from the former defendants, now claimants, the fines and costs that they were ordered to pay and simply to frustrate the process of enforcement. The interested party has been put to significant cost in having to respond to yet another application for judicial review and to attend. The reason in particular that the interested party felt it necessary in the circumstances to attend was partly because of the history of this litigation, both under this CO number and the previous one, but also the apparent desire of the claimants to have this matter heard without reference to the prosecuting authority, that is the Borough of Redbridge, and in all of the circumstances those who instruct me felt compelled to have a presence here today in order that a response could be made and the court could be assisted and so I do make as was made very, very plain in this acknowledgement of service, make an application for costs, both for the acknowledgment service and attendance here today. I have a schedule. The claimants have been given a copy of it this morning.

THE JUDGE: Thank you very much. Yes, Mrs Berry, anything you would like to say? Not about the costs because that is a matter we may have to come back to.

MRS BERRY: Well, as you have heard from Mr Himsworth, he has completely dodged the key issues here, the fact that there is no law, there is no Multiple Occupation Act, as the solicitor instructing him has told me and [inaudible] told me, there is no such law of Multiple Occupation Act which it appears on page—

THE JUDGE: Page 11, I think.

MRS BERRY: —11, thank you, of the bundle that no such law is Multiple Occupation Act and there is no HMO being run at the property, but none of these laws are applicable. The prosecution has been aware of this fact and are persisting in drawing this out and the reason why they are doing this is simple. The applicants had lost their baby [on the sixth day in the care of?] the London Borough of Redbridge in 2000 and the baby’s body was found with organs missing and the social services were informed—

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THE JUDGE: What I am concerned about is the issue involved in the court. I do not think the historical background is going to assist. Is there anything in response to what has been said by—

MRS BERRY: The issue is about perverting the course of justice and perjury has been committed repeatedly. The [chief?] witness of the council, Mr Jason [inaudible], had told the Redbridge Magistrates’ Court that the property was not HMO [inaudible] and this is—

THE JUDGE: I am not going to start hearing issues about what was heard in the Crown Court because what we are concerned with here, as I have said already, is whether judicial review is available when there is an alternative remedy. I have read the papers, I have read your skeleton argument and I have heard your submissions. I do not want you now to embark on what evidence was before the Crown Court, thank you.

MRS BERRY: Mr Himsworth also dodged the issue which was that the charges were issued and were served out of time, which the Crown Court was made aware of, and those charges again and the fact that they were out of time confirms that this action by the prosecution and the interested party was malicious, vexatious, frivolous and to pervert the course of justice in the earlier matters. And also Mr Himsworth has sought to attend today. He has been instructed by London Borough of Redbridge, which is an interested party, which is the prosecution and when Mr Himsworth said “we say”, when he says “we” he is referring to himself as being a representative of both Snaresbrook Crown Court and Judge [Purnell?]. Again, that is to pervert the course of justice, to attend today to defend the court and to defend—

THE JUDGE: He is not. He is here representing the interested party and that is the basis on which I have heard him. I think I have probably heard enough, thank you, now, Mrs Berry.

MRS BERRY: As for the applicants, they seek a remedy today because of a miscarriage of justice without law and without jurisdiction in the Magistrates’ Court and the Crown Court and, my lord, having an opportunity to put this to rest obviously for the sake of the health for the applicants—

THE JUDGE: All right.

MRS BERRY: —and for them to move on from this, it is an opportunity not to be missed [inaudible] It has been going on for such a long time and they are entitled to move away from this nonsense.

THE JUDGE: Thank you very much.

[Judgment follows]

Apple Transcription Limited 11 1495-2139-11/gh 0845 604 5642


District Judge Kemp then threatens Mrs Berry with immediate arrest in the Redbridge Magistrates Court when she attends on behalf of her family to defend Bailiff application on grounds of jurisdiction in the Criminal Court of Appeal confirmed by Supreme Court.

PERJURY BY SOLICITORS WITNESSED BY JUDGE IS NOT REPORTED TO POLICE BUT IS RELIED UPON BY JUDGE TO AWARD COSTS AGAINST VICTIM OF PERSONAL INJURY

JUDGES FAIL TO REPORT TO POLICE, PERJURY BY VICTIMS EX-SOLICITORS and award costs to perjuring solicitors against victims whilst denying damages, to victims of personal injury, obstructed by victim's own solicitors.

IN THE CENTRAL LONDON COUNTY COURT Claim No. 0UC84267

26-29 Park Crescent

London

W1B 1HT

Tuesday, 31st July 2012

Before:

HER HONOUR JUDGE MAY

Between:

KENNETH ELLIOTT & ROWE SOLICITORS

Claimants

-v-

MISS SADHANA CHAUDHARI

Defendant

______________________

Counsel for the Claimants: MISS CAMILLA TER HAAR

The Defendant appeared In Person, assisted by her sister, Mrs Neelu Berry

______________________

TRANSCRIPT OF PART-PROCEEDINGS

[Section of Mr McCormack’s Evidence]

Transcribed from the Official Tape Recording by

Apple Transcription Limited

Suite 104, Kingfisher Business Centre, Burnley Road, Rawtenstall, Lancashire BB4 8ES

Telephone: 0845 604 5642 – Fax: 01706 870838

Number of Folios: 141

Number of Words: 10,157


INDEX TO TRANSCRIPT

Page

MR SEAN McCORMACK - Continued

Cross-examined by MRS NEELU BERRY .............................................................................. 1


MR SEAN McCORMACK – Continued

Cross-examined by MRS BERRY

Q. I’m going back to the document of 21st January, page 3, paragraph 5, it has been highlighted. ‘You do not have a no win, no fee agreement with this firm. You have agreed to pay my firm’s fees at the standard rate of charge plus expenses.’ Can you give a date and time—

THE JUDGE: Sorry, I need to catch up.

MRS BERRY: Sorry.

THE JUDGE: Which letter are we dealing with?

MRS BERRY: The letter that has been handed in today—

THE JUDGE: Oh, I see, yes, the first of the ones we saw today, yes, the one that I put at 28A.

A. No.

MISS TER HAAR: At 28B. It is at 28B.

THE JUDGE: Is it? Oh, I see, all right, yes, yes.

MRS BERRY: Tab D.

THE JUDGE: Page 3 of that, yes.

MRS BERRY: Paragraph 5, the highlighted part is, ‘You do not have a no win, no fee agreement with this firm. You have agreed to pay my firm’s fees at the standard rate of charge plus expenses.’ I would like to ask, what was the date of that agreement?

A. My letter of 4th August signed by Sadhana on 6th August 2009.

Q. You are referring to the client care letter?

A. I am.

Q. And can we go to the client care letter where it actually mentions… Could somebody help me with the page number?

MISS TER HAAR: It is at tab D and it starts on page—

THE JUDGE: 1.

MISS TER HAAR: —1.

THE JUDGE: It is the first document behind the witness statement—

MRS BERRY: Thank you. I have found it.

THE JUDGE: —of Mr McCormack.

MRS BERRY: Thank you. And on page 3 of that document at point number 13 we have ‘a conditional fee agreement, if applicable,’ and also on page 5, number 14, we have ‘Costs. Our charges will be…’ and the fourth paragraph, last line, it says, ‘On the information currently available, on the assumption the case goes to trial and lasts for one day, it is unlikely that the costs will be less than £15,000 per party.’

A. Yes, I see that.

Q. Can you justify the costs of £54,000 from what you wrote in that letter?

A. I do not think that is a question for today, is it? That is for the next hearing.

THE JUDGE: That will be—

MRS BERRY: Right, sorry, okay. All right—

THE JUDGE: The sensible amount of the costs is still in issue and it is not something that I am going to be addressing today.

MRS BERRY: Right, okay. Right, so the date that you’re relying on, you’re relying on the signature on page 7 and it says, ‘I confirm that I have received and read this client care letter.’ So, can you please direct me to where you can confirm that what was in the mind of Miss Chaudhari was that of those two options which one was applicable to her?

A. I can’t tell you what was inside Miss Chaudhari’s mind at all, so no.

Q. I am going to refer you to a letter dated 28th June, if somebody could help me with that one?

MISS TER HAAR: It is at page 40 and it starts at page 38 behind tab F.

MRS BERRY: This letter was sent to Miss Chaudhari and this is on 28th June 2010. I am going to page 3 of that letter, which is 40 of the bundle, of the tab, and the third paragraph that says, ‘Please understand that the fact that you have a no win, no fee agreement does not prevent the defendants from coming at you for all of the costs.’ Can you explain what you mean by that paragraph?

A. I have to put my hands up, your honour, and I think I made a mistake in there. The reference to having a conditional fee agreement at that point is just simply incorrect. It is plain from the start of the action that I did not want to engage in a no win, no fee agreement and never did. If we go back right to the start, I did suggest that I would review the matter when the evidence that I had indicated should be obtained was obtained and then only if the evidence supported me entering into a no win, no fee agreement. It is plain from the file and in fact from this letter and the letters sent on this day, absent that paragraph, that the evidence had come together such that it told me that Miss Chaudhari should be advised to accept the defendant’s offer that they had made to settle the road traffic claim, albeit late, and take the consequences of that because their offer had overvalued her claim significantly and that was always a possibility from the start. The full context of my letter of 28th June 2010 is clearly focused on the advice given to her to accept the offer and on value and I clearly took my eye off the ball as to whether there was or was not a CFA in existence and I have to apologise to you for that error.

Q. Well, further down in the same letter… I only have up to page 3 here, the letter is not complete. Do you have the letter?

A. Yes, I do.

THE JUDGE: I do. Oh no, I do not. No, I have only got that bit.

A. I do not think it is in the bundle.

Q. How many pages did that letter go up to?

A. I think the complete picture is three letters on that day.

Q. No, but, sorry—

A. That letter has four pages.

Q. Has four pages? What does the fourth page look like?

A. It says, ‘I, therefore, suggest that you should not take the risk and bring this to a conclusion immediately.’ That is the one marked ‘Extremely Urgent.’

MRS BERRY: Yes.

THE JUDGE: What is the position at this stage, Mr McCormack about previous agreements with previous solicitors?

A. There were conditional fee agreements with both previous sets of solicitors. Their conditional fee agreements were in fact in my view defective in that they allowed for 105 per cent success fee—

Q. Yes.

A. —which is not allowed.

Q. I saw reference to that, but, I mean, leaving that aside for the moment, what is the impact of… I mean, presumably those previous solicitors are entitled to their fees—

A. Yes, they are.

Q. —if the offer is accepted or if the action is pursued—

A. Even if it is not accepted. If she is successful, if she meets the definition of ‘win’—

Q. Gets any money.

A. —then they are entitled to their full fees with a success fee.

Q. As I understand the chronology, the offer was put in at a time when Miss Chaudhari was being represented by a previous firm of solicitors—

A. Correct.

Q. —under a CFA.

A. Yes.

Q. Miss Chaudhari moved on from those solicitors two months after the offer had been made. I do not know what the position was when the offer was made, but it was before the last of the solicitors—

A. Yes.

Q. —finished.

A. Yes.

Q. If the action is pursued and an offer comes in at under the £35,000, what happens to the fees of the solicitors after the offer? Who pays those?

A. That depends on the terms—

Q. The terms of the CFA.

A. —of the CFA and there are two standard versions, but everything can be changed in any particular instance.

Q. But is there a possibility under a CFA that if you do not accept the offer and you get less that… I mean, who pays the defendant’s solicitors costs in that situation?

A. The claimant. The obligation to pay a defendant’s solicitors costs is always the claimant’s.

Q. Personally?

A. The solicitors do not take those responsibilities on.

Q. Under any CFA?

A. No. Defendant’s costs are always the primary responsibility of the claimant in that action, so in this case Miss Chaudhari. There is a possibility of buying insurance—

Q. To cover any shortfall, yes.

A. —in those circumstances. Insurance was purchased by the first set of solicitors in this matter—

Q. But not by the second.

A —but upon transfer to the second set of solicitors that insurance lapsed. I do not think the second set of solicitors realised that, but my enquiries led me to a conclusion from communications with them that they—

Q. All right.

A. I asked them to transfer the benefit of it to this case.

Q. So, the point is that under the no win, no fee agreement with her second set of solicitors there was an exposure to costs—

A. Yes.

Q. —if the final amount did not beat the payment in or the offer that had been made?

A. Any costs order, yes.

Q. All right.

A. Normally in the first place it would be satisfied from would be any winnings.

Q. But that vulnerability, that possibility was not what you were referring to in the third paragraph of this letter?

A. My solicitor in this matter, Mr Emmanuel, did suggest in correspondence that that was alluded to—

Q. I thought that might have been your views, yes.

A. —but I have looked at that and I think that is a strange interpretation there.

Q. Fine.

A. It may well have been something that I could have suggested, but I think the words that I have used in there, in particular the present tense with ‘have’, I think I just made a mistake. As I say, your honour, the totality of my advice to Miss Chaudhari on that day, which is quite crucial really, is contained in three separate letters of 28th June 2010, which I do have and, unfortunately, are not in the bundle.

MRS BERRY: Can I have a look at those?

A. Mrs Berry is asking for them. Shall I hand them over?

THE JUDGE: Yes. Are those ones that I have seen already?

A. No.

Q. So, this was one of the letters that were sent that day—

A. Yes.

Q. —or are they—

A. That is the first one.

Q. Oh, I see; the first letter and there are two others?

A. There are, yes.

Q. On the same date?

A. Yes. It became urgent because of a telephone conversation I had had with Dr Lloyd, the psychiatrist instructed for the claimant.

MRS BERRY: I want to refer to one of these letters, the one that starts with, ‘Your accident claim.’ It goes into all the amounts and—

THE JUDGE: What is the date of that letter, sorry, Mrs—

A. 28th June 2010.

MISS TER HAAR: This—

THE JUDGE: I see. This is one of the ones that—

A. One of the three.

Q. One of the three, I see.

MISS TER HAAR: This third letter is in the bundle.

THE JUDGE: Oh right, all right. Where will we find that?

MISS TER HAAR: At tab G, page 8.

THE JUDGE: Thank you. Yes, sorry, Mrs Berry, I interrupted you. What did you want to ask about this letter?

MRS BERRY: Yes. Mr McCormack, this letter, I just want to understand what was in your mind when you wrote this letter. You have written there that this offer was made of the £35,000, a part 36 offer that was made with the previous solicitors. Then you go in to this breakdown of really what is down to Miss Chaudhari. If she accepts that £35,000 she is liable to pay your costs on top of that offer. I want to ask you what was it that you knew on that date that you did not know when you took the claim on, that that offer was on the table and you took the claim on? What was the determining factor in your mind what you were going to do for her to progress her claim?

A. Sorry, what was the question?

THE JUDGE: Well, as I understood it, it was what did you know at the time you gave this advice that you did not know at the time you first took her claim on.

A. Right, all right.

MRS BERRY: Yes.

A. Quite a lot.

THE JUDGE: All right. Well, tell us about it.

A. I think reference perhaps should be made to my letter of 10th August. I indicated the kind of evidence that we would need. There was a whole host of things listed, including medical expert evidence on areas that I thought were needed. That evidence had been obtained in that intervening year, or thereabouts. The evidence of all the other experts confirmed, in essence, that Miss Chaudhari’s injury was a six month lasting whiplash type injury and nothing significantly more than that. Miss Chaudhari at that point (and this is what I had anticipated at the start might be the case) then became wholly reliant on the psychiatric evidence to hold together the claim that she wanted to make and wanted to win.

Q. You mean a claim for more than £35,000?

A. Oh yes, so at one point a figure of £100,000 was discussed because the previous solicitors or her barrister had indicated that the claim might be worth more than £100,000, which it could have been had the evidence come out favourably, but the client had in a mind a figure even higher than that. So, when I—

Q. So, once all the medical had come in—

A. Yes.

Q. —it was then going to be a question of the psychiatric evidence?

A. It was absolutely crucial. If the psychiatric evidence did not support her case that she had a somatoform disorder or other psychiatric cause from the accident, not from any pre-existing problem, then if that evidence came forward showing she had a problem down to the accident then her claim was larger. If it did not support anything more than the physical evidence of six months then she had a six month claim. And if I can just find my first letter, which I think is still there—

Q. By the time of writing the third letter had you had that psychiatric evidence?

A. Can I have that back please, the urgent first letter? Right, I start with the first letter, your honour, 28th June 2010, indicating what I thought was going to come from the medical evidence of Dr Lloyd and then anticipating what the joint statement would say.

Q. Mr Lloyd was the psychiatrist?

A. Dr Lloyd, sorry—

Q. Dr Lloyd.

A. —is our psychiatrist and then at the start of page 2 I was in fact interrupted by a telephone call from Dr Lloyd telling me that he had seen Sadhana for the purposes of the updating report and his opinion would be that she had an inability to work through psychiatric injuries for six months and that after that her symptoms were caused by a pathological grief reaction in relation to the unfortunate death of her child, [Shilana?], some seven years previously.

Q. So, psychiatric injury attributable to the accident was—

A. Six months.

Q. —restricted to six months in the same way as the whiplash?

A. Correct, yes.

Q. Yes, so, yes.

A. And at that point you can see my advice becomes very, very firm that £35,000 as a value could not be beaten in realistic terms. I said somewhere, I think, in this letter, ‘Rarely have I given such strong advice…’

Q. Yes, I saw that, yes.

A. But this was one of those cases where it was appropriate.

Q. All right. Well, I think I have got a pretty long note of what he thought had changed between the time of first meeting with your sister and sending this letter.

MRS BERRY: There’re a few questions that has come out of just what Mr McCormack has said and that is the issue of this MRI. Judge Hornby had ordered this MRI to be sent to some experts and I would like some help with the page number.

THE JUDGE: Well, I would like you first to tell me how this impacts on whether it was a CFA or not—

MRS BERRY: Right.

THE JUDGE: —on the issue that we are dealing with today—

MRS BERRY: Yes.

THE JUDGE: —rather than—

MRS BERRY: Right.

THE JUDGE: —issues of competence generally.

MRS BERRY: Sure, but these—

THE JUDGE: I allowed you to investigate what had changed between the two letters because it is obvious that the letters themselves refer to the CFA and—

MRS BERRY: Yes.

THE JUDGE: —so I let you have some leeway on that—

MRS BERRY: Thank you.

THE JUDGE: —but I do need us to keep focused—

MRS BERRY: Yes.

THE JUDGE: —on the issue and—

MRS BERRY: Okay.

THE JUDGE: —I am wondering how the MRI scan stuff… I know your sister has—

MRS BERRY: Yes.

THE JUDGE: —complaints in relation to it—

MRS BERRY: Okay.

THE JUDGE: —but I am wondering how that impacts on the nature of the agreement between the solicitors and your—

MRS BERRY: Okay. Well, your honour, as you’ve heard, what was in Mr McCormack’s mind changed—

THE JUDGE: In law I am not very interested in what is going on in people’s minds. I look at what the documents show. That is a matter of law.

MRS BERRY: Okay.

THE JUDGE: So, what is in people’s minds—

MRS BERRY: Okay.

THE JUDGE: —can only be of limited use, I am afraid.

MRS BERRY: Okay. Well, Mr McCormack has not shown us any evidence that there was any kind of definite agreement as to the terms of any agreement.

THE JUDGE: All right.

MRS BERRY: And we’re having to rely on what was in his mind because he hasn’t produced any evidence.

THE JUDGE: Well, I think what he would say is that it is the client care letter. Now, there may be all sorts of arguments about the meaning of that letter, but he says that there was a contract evidenced by that letter and by the many meetings and by the fact that he went off and instructed doctors on behalf of your sister to see her and to provide opinions on aspects of the underlying case.

MRS BERRY: And what we’re saying is that basically the firm messed up her claim deliberately—

THE JUDGE: Well, I understand that.

MRS BERRY: —in order to inflate their fees and basically tell her to go and sell her home and pay for the defendants—

THE JUDGE: I understand all of that,

MRS BERRY: I know that we’ve had a similar action against my mother by this firm and they have put a charge on my mother’s property. Now, she is a very similar—

THE JUDGE: I am afraid that I cannot deal with that today.

MRS BERRY: What I saying is that the issue here is that what the firm is doing routinely is misleading people as to the terms of the understanding of any agreement.

THE JUDGE: I am going to let you make all these submissions at the end of the case. Shall we just finish Mr McCormack’s evidence—

MRS BERRY: Right, okay.

THE JUDGE: —if there is anything else you want to ask him—

MRS BERRY: Yes.

THE JUDGE: —that is to do with the nature of the agreement.

MRS BERRY: It’s to do with the messing up of the claim.

THE JUDGE: Not interested in that today.

MRS BERRY: Right. Well, okay, Mr McCormack, can I just ask you, you have gone with the psychiatrist here. You have just said that you are going to rely on the psychiatrist because the psychiatrist said this, but if you remember Judge Hornby’s order, he had ordered in a sequence that there was going to be… and at that time as you recall the lower back injury had not been identified—

MISS TER HAAR: Your honour—

THE JUDGE: This is not to do with the CFA other agreement point.

MRS BERRY: Well, Mr McCormack, has gone with the psychiatric thing, he said six months with the psychiatric thing. Now, my sister, because the personal injury claim is now at a stage whereby the… she is now relying on a consultant neurologist who has identified very serious brain injury as well as very serious neurological conditions as a result of the accident which has now gone into the Queen’s Bench and is presently in the Court of Appeal.

THE JUDGE: Yes, but I have seen the reference to all of that but, again, we must try, and I know it is really difficult because your sister and you see the case as a whole, but the order has been simply to focus on what the arrangement was with the firm, what the agreement was in August 2009 as to the terms upon which the solicitors agreed to take your sister’s case on, to handle it. I absolutely understand that you have all sorts of criticisms of them, of the way that they then proceeded to handle it but just focusing on as at August ’09 what the position was is what we must restrict ourselves to today. So if there is anything else you want to ask Mr McCormack about what happened in August 2009 when the firm took on your sister’s case then by all means ask it. If not, then that is the end of his evidence on that point. All right.

MRS BERRY: Okay. I am trying to make the point, but I am not able to ask the right questions to make that point, and the point is, and I have asked that question but I haven’t had the answer, and the question is what was the date on which you decided that there was a CFA or there wasn’t a CFA or there was private fee or there wasn’t a private fee,

A. By letter. If that is the letter, that would be the 10th August letter.

Q. 10th August. So you haven’t decided on 10th August—

A. To offer a no win/no fee agreement, correct.

Q. Exactly, so you cannot then rely on a client care letter that she signed on 6th August, can you?

A. Yes, I can.

Q. And how do you do that?

A. Well, the agreement that we reached in the letter of 4th and signed on 6th is a private client arrangement.

Q. And normally when there is a private fee arrangement, there is an amount to pay beforehand, there are regular payments. When… why did you… what kind of… I mean, what was Miss Chaudhari’s understanding of that private fee agreement that if, you know, there’s nothing that she… to suggest that she was aware of it.

A. If you are asking me to speculate as to what Sadhana thought, I leave that to Sadhana in her evidence.

Q. Well, the laws says that if there is a dispute between what a solicitor says and what a client says that because a solicitor are the ones that have drafted the documents, that you go with what the client understood and there is a lot of law on that.

THE JUDGE: Well, I am not sure that the law exactly says that, but I think I know what you are getting at.

A. Yes. The letter was plain, the letter was signed. The reference to conditional fee agreement says “If applicable”, it was never applicable. The letter was signed and returned and the work was engaged upon on that basis. The rest is really for Miss Chaudhari to give evidence.

MISS BERRY: What arrangements did you make to have regular payments or a deposit with that private fee agreement?

A. I did not make arrangements for that.

Q. Why’s that?

A. Because I knew Sadhana’s finances were stretched.

Q. And where did you then change that? When did you decide to change that?

A. When Sadhana started to become unreasonable and started to not cooperate,

Q. The arrangement was… was it… I mean, do you say that because you had become difficult and “I am going to now change the way that this arrangement is going to work”.

A. If you are referring—

THE JUDGE: I think we have seen that letter, have we not? I mean, it does not say, “You are becoming difficult” but it does say “Matters are now extremely urgent and you need to address this” and I am sure that I have seen a letter like that and going on to say, “I must ask you now for some monies. You do not want to take the offer, I am advising you very strongly to take it and I am now going to ask for some money”. I am sure I have seen that letter, Miss Ter Haar. Have I seen it somewhere? Was that perhaps the one that I put in at 28(A) or maybe the next one?

A. I think that’s right. I think it is the 21st of January.

Q. Yes, it is the one that I put in at 28(B), 21st January.

A. I believe, your honour, that Miss Berry might be alluding to the application to come off the record where I didn’t allege unreasonable behaviour, I specifically didn’t do that. My experience with courts on an application to come off the record is that there is always a possibility that the documents may come into the defendant’s hands and so rather than lay out the gory detail of a dispute between solicitor and client, which is unedifying at best—

Q. Well, I am containing advice that you think £35,000 is way over the mark for—

A. Exactly, I didn’t want to take any risk on behalf of Miss Chaudhari of that information coming into the defendant’s hands and prescient it was because Miss Chaudhari, during the course of the matter, sent all of those documents to the defendant. Had that been the state of reason on the applicant, the defendants would have become fully aware of it and I am very glad I didn’t… I took the option to just use the simple payment on account not paid, terminate relationship approach. I could have used both.

Q. All right. Was there anything else, Miss Berry, on this narrow point of the nature of the agreement, of what happened in August 2009 when the matter started, that you wanted to raise with Mr McCormack?

MISS BERRY: Well, I am trying to establish… Well, when there is an agreement there has to be a date and time of an agreement.

THE JUDGE: Yes.

MISS BERRY: Right. So I am trying to establish a date of the agreement, of the terms of the agreement.

A. 6th of August 2009 - £350 per hour plus disbursements plus VAT.

THE JUDGE: Sorry, I do not catch that.

  1. 6th August 2009 client care letter. It is dated 4th August and signed on the 6th and states a rate of £350 per hour plus VAT plus disbursements. That is what I claim is the arrangement.

MISS BERRY: And you also justify £54,000 from a personal injury client when they have had an offer of £35,000, what you have done is you haven’t forwarded the evidence of her injuries to the experts—

MISS TER HAAR: Your honour, this is not—

THE JUDGE: Yes, again, we are going outside the nature of the agreement.

MISS BERRY: Well, I’m talking about the professional misconduct of the firm.

THE JUDGE: Yes, well that is all still up for grabs, but not today.

MISS BERRY: Well the point is that the firm is changing the terms of the agreement as and when it suits them and the law does not permit that.

THE JUDGE: No, you are right, it does not. But what makes you say that they are changing the terms of the agreement when it suits them?

MISS BERRY: Well, Mr McCormack has just given evidence that he unilaterally changed the terms of the agreement.

THE JUDGE: No, he has not. No he has not.

MISS BERRY: When he wrote the letter in January asking her for some money and then on 28th June, again, he asked her for an extortionate amount of money, £15,000 to be paid within 28 days and the balance to be paid at £3,600 per month over the next twelve months, after having failed to forward the evidence of the injuries to the experts which would have prevented the court being misled—

THE JUDGE: There was no term in the agreement that he would ask for no money at all until after the claim had been resolved one way or the other. He simply sets out an hourly rate. What he is asking for, as I understand it the following year in that letter of 21st June, is for some payment of some of the monies that had already been incurred, some of the cost that had already, that the solicitors had already incurred in preparing instructions to experts, instructing experts. This is not a change of terms, he is putting in a bill for what he has done.

MISS BERRY: Well, my understanding is that the only difference between a private fee and a conditional fee is when they get their money. Conditional fee, they have to wait until the settlement of the claim and then they have to fight with the other solicitors for the spoils and I have to just—

A. Can I say that is not correct—

Q. —and they have to justify… it has to be a reasonable amount and it has to be justified—

THE JUDGE: But I do not see how this goes to the nature of the arrangement that Miss Chaudhari entered into with the firm in August 2009.

A. Can I help in suggesting that even under a conditional fee agreement, a solicitor is entitled to ask for disbursements that have been incurred and on account of disbursements to be incurred. That is still… the primary obligation is on the claimant, the client, and it is still a legitimate request to make, even under a CFA, which we did not have here.

Q. But in practice, you would not under a CFA.

A. It depends on the insurance arrangement.

Q. All right. Well, in any event I think that is outside our remit for today.

MISS BERRY: Well, what my understanding is, is that is why they are allowed to ask for a top-up, it’s because they had these extra… they have to wait and they have these extra risks that they take. And, Mr McCormack, you do talk about risks in your letters, risks in a sense that you would only use the word risks if there was a conditional fee agreement because if you were that sure that you were on a private fee and the client had agreed to it, which she hadn’t, you wouldn’t be concerned about risks. You would have to justify what you were doing for her on a monthly basis, you would send her a regular amount and without that regular update on how much that money was coming to… and the first she knew of it was a year later and you cannot simply do that. Under conditional fee agreement regulations you are not allowed to make… pick and choose what you do and when you do it, it has to be agreed and written clearly. You cannot chop and change between the CFA and a private fee. You cannot put both terms down in a client care letter. And Judge Dias was very clear on that—

A. You are making a speech, I think. What question do you want me to answer?

Q. Well, explain to me and to the court how you are relying on a client care letter with both the terms of conditional fee agreement and a private fee agreement. Why does your firm routinely send a client care letter with both terms and it says, “If applicable you will be advised separately on this” and what you did do was that you left it in the air. Up until 28th June was you first then, having not sent the MRI to the experts, having gone the psychiatric route without looking at the neurology and the orthopaedics, you have then destroyed her claim and then said, “Well, hey, you know, you should have taken it before” and that is not acceptable.

A. Is there a ques—

Q. You cannot run up £54,000 and then give advice—

THE JUDGE: I am sorry, what, Miss Berry, what is the question that you have for Mr McCormack, what do you want him to answer?

MISS BERRY: The question is, Mr McCormack, do you think this is a correct way of operating a solicitor’s firm that deals with personal injuries when you are dealing with disabled clients, elderly clients, who have been injured—

THE JUDGE: No. Sorry, I am going to break this down. Is this an appropriate letter to send?

A. It’s perfectly proper to act on a per… on a private client basis for a client in a personal injury claim and by the very nature of what I do most, if not all, of my clients are injured and therefore disabled to some degree. So I—

MISS BERRY: And do you send this letter to all of them?

THE JUDGE: Sorry, no, next question.

A. I… the terms of our conditional fee agreements have been interfered with by our senior partner. I didn’t agree that that paragraph should be in it. It would be clearer and better if it were not there.

Q. What, do you mean the whole of section 13?

A. Yes, the “If applicable CFA” stuff. I would have preferred that in a separate letter, but our senior partner decided, in his wisdom, that he directed that all possible terms go in one letter. I don’t agree with that decision, I didn’t agree with that decision, but I had to comply with it. Hence the “If applicable” section.

Q. Well, in brackets after the heading.

A. In brackets. It’s not applicable. If it applies then you would receive a different agreement, a new agreement, with further explanatory letters which of course you had in your claim and which Sadhana would have had from her previous solicitors, together with the agreement that she signed in both those cases. So she knew full well what a CFA really was. And I can’t be much clearer, can I, in my letter of 10th and my meeting on the 12th, saying I did not want to enter into a CFA. I mean, if there was any doubt from the letter of 4th and signed on 6th, surely that is clarified by the 10th letter and the 12th meeting, both of August 2009. And then from the further letters from time to time simply saying there isn’t one, until of course I made the mistake in June of 2010.

MRS BERRY: I want to refer to the tab D, page 18. Last but one paragraph, “Having said that I am reluctant, I am not at this point in time ruling out that I would act on a no win/no fee agreement but I think we need to have a discussion about this”.

A. Yes.

Q. So can you tell me what discussion you have had about that?

A. Quite sensible, isn’t it, I hadn’t even met the client yet, at that point.

Q. Okay.

A. I don’t like to come to concluded decisions without actually meeting the client.

Q. When did you have the discussions?

A. The meeting? 12th of August.

Q. And what exactly… what did you discuss?

A. I said I didn’t want to enter into a CFA. So that was the end of it.

Q. Can we go to those handwritten notes?

A. Yes.

Q. First of all, could you explain to me why page number 3 is actually page number 4? We have got three pages and then page number 3 is in the place of page number 4.

A. I have no idea what you are on about, there’s no numbering on the...

THE JUDGE: There is no… Oh, I see, yes, no, one page has got 3 circled in the top right-hand corner.

A. I think these are all added afterwards for the purposes of this litigation, your honour. Oh, no, I see, I see.

Q. Yes, the fourth page in has a 3 circled.

A. No. I can’t explain that. I’ve not idea what it is.

Q. Maybe Miss Whalley will be able to help when she gives her evidence. These are not Mr McCormack’s notes after all.

MISS BERRY: No. And also I notice that these notes are not really following each other, they don’t seem to be in the right sequence. But in any case I just want to go to the very last page, page 25, it says, “The value, if succeed…” last few lines, page 25, “The value if succeed on all, several hundred thousand pounds”. And do you remember the exact figure that you had in your mind when you thought several hundred?

A. I wouldn’t have had a specific figure in mind. What I was saying is if the evidence came to bear as Sadhana wished it to demonstrate then, yes, the claim was potentially worth several hundred thousand. That’s correct.

Q. And then on the last page it says, the very last line, it says, “SM can’t advise whether we will beat and need medical evidence”.

A. Yes.

Q. So, when you say that you had a discussion on that day, you still hadn’t decided because you hadn’t seen the medical evidence. Is that correct?

A. No, what’s that referring to is I couldn’t advice whether Sadhana had any reasonable prospect or not of beating the £35,000 offer. That is what that is referring to.

Q. Do you remember what you actually told her about… I mean, where does it say, in these notes, that she has agreed to pay you privately?

A. That’s the signed letter on 6th August.

Q. Yes, but that… this is now, we are on 12th August now.

A. Yes, we are.

Q. So…

A. Well, nothing’s changed. Nothing’s changed, so the arrangement is the private client arrangement.

Q. You do appreciate that she… you appreciate she doesn’t have any money to pay you privately.

A. I don’t know that now.

Q. Well, you said earlier that you had that in mind—

A. Her finances were [inaudible], yes.

Q. And you didn’t ask for any money.

A. Yes.

Q. Is that right?

A. I don’t know her full extent of her assets though.

Q. But then you decided… I mean, you are aware that a formal complaint was filed against you with the firm in August.

A. Yes.

Q. You were aware of that and because you actually dealt with that complaint—

A. No, I didn’t,.

Q. —partly.

A. I didn’t.

Q. Mr [Inaudible] must have spoken to you about it because his letter refers to the fact that you had had discussions with him.

A. Mm-hmm.

Q. And is it… can I put it to you that you were absolutely upset about the complaint and you decided to change the terms of the agreement because you were not happy about the complaint?

A. I’m upset when anyone complains. I try to provide a good service and I pride myself in doing so. Of course I am upset when a complaint comes in.

Q. But do you take it as an opportunity to improve the way that you handle claims?

A. Are you suggesting… Well, what are you suggesting? The agreement is the agreement, it hasn’t changed.

Q. Except that you were aware that she didn’t have the means to pay you privately—

A. That didn’t change the arrangements.

Q. And you have told the court that up to that point you were aware of that fact that she did not have the money to pay you privately. So how would she have gone into a private fee agreement with you if you knew and she knew that she didn’t have the money to pay you?

A. Well, there was the prospect of winning the claim, wasn’t there?

Q. Exactly. So why did you not wait until her claim was settled—

A. I’ve explained, I didn’t want to enter into a no win/no fee agreement. I didn’t want to have… I wanted a no win/no… I wanted a private paying arrangement and that is all there is to it.

Q. And when did you exactly decide you wanted to have that private fee arrangement?

A. I think that question has been asked and answered, hasn’t it? 4th August and 6th August, confirmed in my letter of 10th August and the decision on 12th August.

Q. But then in January you started asking for disbursements and in June you started asking for £54,000.

A. There is nothing inconsistent with anything I have said in asking for disbursements on account and when those disbursements are not paid, there is nothing improper in terminating a relationship and then asking for the full amount of my firm’s fees and expenses. That is the proper thing to do and that is exactly what happened.

Q. I would put it to you that you had discussions with the defendant solicitors about your own fees and in one of the letters you say that they may, “You may not need to worry about my fees because the defendants will be paying my fees”.

A. Can you show me that?

Q. Miss Ter Haar, can you help me with that?

MISS TER HAAR: I am not sure which letter you are referring to. If you tell me the date of it, I can help.

MISS BERRY: I believe it is the one of 28th June.

THE JUDGE: G9, perhaps.

MISS BERRY: I think you’re right, judge, your honour.

THE JUDGE: I mean, I am merely suggesting it because I do not see in that letter what you have suggested was in it, but I do see a reference to having telephoned Mr Harrison at Plexus. Is that what you were thinking of?

MISS BERRY: That is the one, yes, your honour.

A. Yes. Well, the letter is plain and clear and says what it says. There was a discussion about chasing an up to date CRU certificate. The claimant’s lawyers cannot obtain an up to date CRU certificate and the request can only come from a—

THE JUDGE: CRU?

A. Benefits. The benefits, of course, that are received by a claimant during a claim are potentially repayable.

Q. Yes.

A. And, as I say, it’s only defendants that have the ability to ask for an up to date certificate and it became relevant of course because if Sadhana was going to accept my advice then the CPR 36 requires that the benefit incurred after the date of the previous Part 36 offer need to be considered and dealt with in some way.

Q. Right, yes.

A. I certainly don't recall any discussion about them paying my costs at that point. And they are not my costs anyway, they are the claimant’s costs. My costs are what I bill my client. What the defendants pay is a contribution towards the claimant’s liability.

MISS BERRY: I wonder if it may be something a little bit more elaborate in the second letter. Could I borrow the second letter of 28th June which it is not anywhere in the bundle.

A. The second letter?

Q. Yes.

A. Right. Yes, this is not in the bundle. This is a standard Part 36 advice letter.

Q. I think it may be in there.

A. But that is the second letter that you are asking for.

Q. I wonder if Joanna could be able to read into—

THE JUDGE: You have got the only copy.

A. What is the relevant paragraph? Because I don’t know what—

MISS BERRY: What you were debating was about what the options were of this Part 36 offer that was on the table before you came along and you are giving her all the options, various options. In it, there is the issue of your own costs in there.

A. Mm-hmm.

THE JUDGE: Yes. What is—

A. That letter has to be read, your honour, in context. The letter that introduces it, the first letter, explains it and it says, “I enclose a letter that this firm provides when an offer is made. You will of course appreciate that the offer in your case was made before I was instructed. However, the letter gives you all the information you need to know about the consequences of a payment into court/offer to settle a claim”. Do it is a letter that we provide normally when an offer is made. Clearly, in this case, the offer was made long before we were involved, but at that point it became sensible to repeat that advice.

Q. Yes, understood.

A. If there is an error in history or tense then it would be because that is a standard letter normally sent at the time of an offer. I don’t know if there is such an error.

Q. Was there any particular bit of it you wanted to draw my attention to, Miss Berry?

MISS BERRY: There was a letter and I can’t find exactly what it said but basically Mr McCormack wrote saying, “Don’t worry about our costs, we will get them from the defendants”.

THE JUDGE: All right. Well, if you find that, Mr McCormack is not going to go anywhere and we can ask him about it in due course. You will have over lunchtime to have a look. So if you find it, we can ask him about it. Lynn, can you give that back to Mr McCormack.

A. Thank you very much.

Q. Was there any other matter that you want to ask Mr McCormack about concerning the arrangement they came to in August 2009?

MISS BERRY: Just the point that the two terms being in the client care letter, the conditional fee agreement and the private fee agreement being in there, my sister is signing that she has read and understood the bit—

THE JUDGE: You are going to have plenty of time to make your points to me. So it is a question of whether there is any more bit of evidence you want to ask Mr McCormack about or whether that… you have taken him to all the letters that you want to. You will absolutely get a chance to make these points to me, but let us get through the evidence first. Miss Whalley is coming, so you will be able to ask her about the handwritten notes which are hers anyway.

MISS BERRY: One of the issues that was part of the… I mean, I have to reiterate, in a different way perhaps to make it look a bit more acceptable, that because the firm had written a letter on 28th June saying… relying on the psychiatrists and that has a history, there is a history to that that is relevant in a personal injury claim and because the injuries are neurologically based and organically based, which the solicitor’s firm whichever way they conducted or managed the claim, was to steer it away from the neurological evidence—

THE JUDGE: You do not need to explain it any more, I understand what your case is going to be but I do not understand, and I am going to start getting more impatient soon, I do not understand how that bears on the nature of the agreement that was made in August 2009.

MISS BERRY: Okay. Mr McCormack, do you recall that when you suggested to my sister that she goes to see the psychiatrist for the third time that you were… you wrote to her to say that he would be having a look at the MRI of the… that was ordered by the judge—

THE JUDGE: No, I am sorry, but this does not bear on the nature of the arrangement that they came to for the payment of solicitors’ costs, fees, for the payment for the payment for the work.

MISS BERRY: Well, because the letter of 28th June was based on their understanding of the value of the claim—

THE JUDGE: It is nothing to do with the value of the claim. The nature of the arrangement is nothing to do with the value of the claim. It is a very small and restricted point that goes to what the arrangement was for the employment of the firm to act on her behalf.

MISS BERRY: Well, if I may go back to the letter of 28th June, which is tab—

A. Your honour, nothing in June 2010 can bear on what arrangement was in place in August of ’09.

THE JUDGE: What is there in that? Well, it might do, Mr McCormack, if there was something, for instance, in that letter that specifically said or made some reference to the arrangement that they came to the previous year, if there was. I do not recall there being anything but I am not going to rule it out until Miss Berry has taken me to the point that she wants to make on the basis of that letter.

MISS BERRY: Page 40, first paragraph.

THE JUDGE: Sorry, page 40 of which tab?

MISS BERRY: Tab F.

THE JUDGE: F, yes.

MISS BERRY: Page 40, first paragraph, “If you are prepared therefore to listen to independent qualified legal advice, my advice is that you finish this claim immediately on the best possible terms. I believe those best possible terms are that you accept the defendant’s offer and accept the costs consequences that flow from that.”

THE JUDGE: How does that relate to the agreement for payment of fees, whether it was private or CFA?

MISS BERRY: Well, the law says that fees, solicitor’s fees, have to be justified and proportionate.

THE JUDGE: Yes, and we are not deciding today whether these were justified, but they may not have been. It may be that the firm is only entitled to £10,000/£15,000, I do not know and I am not deciding it today and I do not want to hear any evidence about it because it is irrelevant to the point that I have to decide.

MISS BERRY: And this follows on—

THE JUDGE: We are just taking up a lot of time, you see, on irrelevant stuff, so I must keep it focused on the point about the arrangement between you. All of these other matters are still for a future time, they are not for me today.

MISS BERRY: Well, this letter goes on about the psychiatrist, Mr Lloyd, and he relies on—

THE JUDGE: I do not think you are hearing me, Miss Berry, I am not interested in Mr Lloyd. I am not determining any issue to do with Mr Lloyd today, none at all.

MISS BERRY: Well, your honour—

THE JUDGE: Mr Lloyd was not present at any of the meetings in August 2009 when the solicitors were first engaged. It is nothing to do… what I decide, nothing to do with Mr Lloyd.

MISS BERRY: Your honour, we heard evidence from Mr McCormack that something triggered the letter of January 2010. There was a complaint made in August 2010—

A. I think that’s about right because the application to come off the record, I think, was in September of 2010.

Q. Yes.

A. Or before, but around about that time.

Q. And it was as a result of your advice in this letter that that complaint was made.

THE JUDGE: Well, what is the relevance of the complaint to anything I have to decide today?

MISS BERRY: The… I’m not able to bring the point out, but basically a member of the public, personal injury victim, has gone to the solicitor’s’ firm, they have the power to do whatever they like whenever they like and send her a bill for an extortionate amount which she has not agreed to pay—

THE JUDGE: Nothing I decide today will say whether that is the correct amount of the bill that she has to pay, nothing.

MISS BERRY: Well, that first paragraph, I think, sums up what the solicitor’s firm had not acted in her best interests.

THE JUDGE: Yes. All right, I have got that point and it is not something that I am going to be deciding on today. I think the paragraph in this letter which may say anything about what I have to decide today is paragraph 3 on that page and we have already had Mr McCormack’s evidence in relation to that. Was there any other letter or bit of evidence that you wanted to ask Mr McCormack about that has to do with the nature of the engagement, the terms of the engagement?

MISS BERRY: Well, just that paragraph that you have apologised for, you… well, I am not quite understanding what your apology is, but… How did that paragraph come about?

A. I think I’ve explained that.

MISS TER HAAR: Mr McCormack has already answered that question, your honour.

THE JUDGE: Yes.

MISS BERRY: Do you accept that, on that day, the… that Miss Chaudhari’s not aware of any other terms of agreement except a no win/no fee?

A. You are asking me to speculate as to what Miss Chaudhari believed?

Q. Yes.

A. No, I am not going to.

Q. Do you care what she believes?

THE JUDGE: That is not a question that I am going to require Mr McCormack—

A. That’s unfair.

Q. —to answer because it is not relevant to any issue that I have to determine.

MISS BERRY: Do you realise the legal implications of that paragraph and that evidence as a letter from you to her stating as fact that there is a no win/no fee agreement?

A. Your honour, I am not sure it has any legal implication. That’s a matter for her honour. It’s a—

Q. Well, it’s evidence that there was.

A. Well, it’s some evidence, yes, it’s in a letter—

Q. That she believed that there was?

A. Well, the court has already heard my explanation for it. It doesn’t… just because you say something is in existence or a particular colour does not make it so. For example, Sadhana claims she has a spinal cord injury, the MRI scans seem to show that she doesn’t.

MISS BERRY: Sorry, that’s a—

THE JUDGE: No, just… we are not going to decide that today. That is a contentious fact but—

A. I am just making a point.

Q. I understand.

MISS BERRY: That’s not a point. That’s not evidence that you managed to send to the experts, was it?

THE JUDGE: Enough, enough. We are just not getting into this today. We will be here for seven days if we get into this and we have one day to decide a restricted legal point.

MISS BERRY: So, I mean, you have contradicted yourself in this letter of 28th June with what you… what the evidence you have given in court here today. It’s your own evidence that you have gone against yourself, which you have said to the court and which you have written to your ex-client.

A. Again, I am not seeing a question in there.

Q. There’s perjury.

THE JUDGE: No, there is not perjury.

MISS BERRY: Your honour’s… and you have given evidence which is—

A. I am on oath and I have given wholly truthful evidence and I am very happy with the evidence I have given. It has been completely the truth in accordance with my oath.

Q. And you have accepted that the evidence you have given in this court is contrary to the evidence in this letter.

A. I think this is becoming repetitive, your honour. My evidence today, I think, has been quite clear.

Q. You are a solicitor, a legally qualified person who should know the implications of what you have done today in court.

A. Mm, yes.

Q. In giving oral evidence which you know to be untrue.

THE JUDGE: No, that is not right. That is not right. What oral evidence has he given which he knows to be untrue? You cannot make that statement without specifically referring him to what evidence you say is untrue. What evidence do you say is untrue that he has given in court today? He has said that this paragraph in this letter was a mistake. He said, “I have to put my hands up, that is not the position. I have included it by mistake in that letter”. Now, that may or may not be what I conclude about what the agreement was but that is his evidence. What about that is untrue do you say? How has he perjured himself?

MISS BERRY: Well, you can’t have a conditional fee agreement and a private fee agreement—

THE JUDGE: No, you cannot.

MISS BERRY: —at the same time, it has to be one or the other. Now, he has given evidence, oral evidence on oath in this court, that the client care letter of 4th August—

THE JUDGE: Is evidence of a private fee agreement.

MISS BERRY: Exactly.

THE JUDGE: Yes.

MISS BERRY: And that is not true. He knows that to be not true.

THE JUDGE: All right, well that is for me to decide. Yes, do you have any other questions that you want to ask Mr McCormack?

MISS BERRY: And therefore he has committed perjury in this court today—

THE JUDGE: Yes,

MISS BERRY: And, Mr McCormack, what you are doing today is no different to what you have done in her claim which is to mislead—

THE JUDGE: All right, that is the end of Mr McCormack’s evidence. Thank you very much, you are released.

[End of requested transcription]

HHJ May then proceeds to award over £4,000 costs to the Claimant solicitors' firm and their barrister Miss Camilla Ter-Haar against the seriously injured Miss Sadhana Chaudhari