"A FUNDEMENTALLY MISCONCIEVED APPLICATION"
The Managing Director of an alleged construction company in control of his company's litigation brought separate proceedings against his opponent's solicitor requesting a Non-Molestation Order to prevent the service of documents and/or remove him from court the record.
The case should be of interest to civil practitioners being subject to harassment and/or blackmail and serve as a warning that the courts have a very low tolerance for such behaviour.
MR PAUL ARCHER -v- MR GAVIN RENWICK (Family Court of Torquay & Newton Abbot 26 May 2022) (unreported)
This hearing formed part of the plethora that was the I-Design Construction Ltd litigation. We acted for the successful Defendant/Part 20 Claimant whom was awarded £95'635.04 damages and £176'638.92 costs. Further, we successfully made the directors of IDC joint and severally liable for the costs of the litigation they had commenced.
BACKGROUND
The Applicant Mr Paul Archer was the Managing Director of I-Design Construction Ltd (now in liquidation), an alleged construction company that had operated in south Devon. IDC had entered into a contract with our elderly client to undertake a loft conversion at his only home. However, instead of performing any of the contractual works, the Applicant and his company took our client's life savings and then abandoned site leaving its occupants in a home at risk of structural collapse and without central heating or hot water at the height of winter. IDC then issued proceedings against our client for additional sums threatening criminal proceedings if he did not simply pay up.
Rather than progress the litigation which eventually lead to IDC's claim being struck out, the Applicant embarked on a campaign of harassment against his elderly victims. Although they were legally represented, they were bombarded with threats of further civil litigation and criminal actions unless they paid a string of steadily increasing sums. They were then threatened and subjected to random drivebys, late night cold calling, received photos of their home which were sent to them directly and finally, suffered threats of personal attendance which prompted police intervention.
We referred this behavior to the courts whom made a series of orders and sanctions as s legally represented represented parties should not be contacted directly. However, the Applicant then redirected his efforts to our practice and we received late night and weekend emails written in red demanding that we come off record or suffer reputational damages. When we resolutely refused to abandon our client, the Applicant embarked on a series of false complaints to the police which involved sending various witness statements to the courts alleging that we were threatening his wife and children. All these allegations were rejected as they were fundamentally dishonest and the attempt to remove us from the court record failed.
Liability for our client was determined April 2022 and the matter listed for a Damages Assessment Hearing July 2022. In the interim, directions were given for the service of witness evidence, Scott Schedules and updated expert reports for the quantification of damages. During this time, in May 2022 the applicant sought a Non-Molestation Order against his successful opponent's solicitor-advocate to prevent the service of anymore documents.
THE APPLICATION
The Applicant as he had done before, alleged the Respondent was contacting and threatening his wife and children and sought a Non-Molestation Order for their safety, on that basis no more documents should be served in the main litigation. In support of the Application, he relied upon correspondence between IDC and the Respondent in the main litigation but as usual, was unable to produce anything sent to his wife and children (or even anything sent to himself).
The Respondent challenged the Application on the following basis:
All the correspondence relied upon was between the IDC and their opponents solicitor. It was being sent to the address on the court record and to a company e-mail account recorded on the court forms signed by the Applicant himself. It was not being sent to the Applicant but the Applicant's company.
Under s.62(3) Family Law Act 1996 the Respondent was not an "associated person" of a "relevant child". Indeed, the Respondent had no knowledge of any of the Applicants children until he had received the application providing their details.
In any event, it was the Respondent that had repeatedly written to IDC asking them to comply with basic data protection and stop trying to employ their families as tools in dubious litigation they were pursing.
Following service of the Response, the Applicant served a further witness statement which surprisingly admitted that his families' knowledge of the litigation originated from the Applicant himself and from the company's endpoints. Instead, the Applicant now argued that the litigation was making him extremely ill and therefore, the Non-Molestation Order should be granted.
In return, the Respondent relied upon the Management of Health & Safety at Work Regulations 1999, regulation 3 and suggested that if the Applicant had become ill during the litigation, then IDC should have undertaken a risk assessment to identify this risk.
JUDGEMENT
The Applicant despite the seriousness of the allegations failed to attend the hearing and gave no excuse. Accordingly, the DJ having considered the written submissions ruled:
"The Applicant and Respondent are not associated persons for the purposes of s.62(3) Family Law Act 1996 and thus the application is fundamentally misconceived and cannot succeed"
While costs do not normally follow the event in the Family Courts, given the seriousness of the allegations and taken all circumstances into account, it was considered in the interests of justice that on this occasion they do so. The question was how these costs should be assessed?
THE CHORLEY PRINCIPLES
The Respondent (being a practicing Grade-A Solicitor-Advocate), argued that as he was being sued in a professional capacity the appropriate assessment should be costs according to his standard hourly rate.
While the Family Courts use different rules, judicial discretion on the appropriate order for costs is absolute and a Family Judge can consider the relevant parts of the CPR.
It was accepted that CPR r.46.5(5)(b)(ii) states that a litigant in person includes a solicitor except where any such person is represented by a firm in which that person is 'a Partner'. However;
In Halborg -v- EMW Law LLP [2017] EWCA Civ 793, the solicitor being sued was a Sole Practitioner and the Court of Appeal agreed that it was in the interest of justice that the definition be extended to that of a Sole Practitioner. Consequently;
A solicitor whom acts for himself as a party to litigation can recover not only his out-of-pocket expenses, but also his profit costs. The reason is not due to some special privilege but on the purely pragmatic grounds that:
There has been an expenditure of professional skill and labor by the solicitor party.
That expenditure is measurable.
The solicitor party would otherwise employ another solicitor and, if successful would be entitled to recover the costs of that solicitor, and;
Since he cannot recover for anything which his acting in person has made unnecessary, the unsuccessful party will have the benefit of the disallowance so would pay less than if the solicitor had instructed another solicitor.
Specifically, paras 25-29 of the judgement confirmed that 'the Chorley Principles' survived the CPR which is covered by the overriding indemnity principle.
On that basis, the costs of the day were assessed pursuant to the Chorley Principles without any deduction whatsoever representing a significant sanction for those whom would abuse the importance and protections of the Family Courts for their own gain.
COMMENT:
There is no conceivable excuse for any director or other company officer to use family members, particularly those being described as 'children' as weapons in litigation. While an occasional oversight may be understandable, repeated and reckless breaches of data protection which allegedly included giving children access to work laptops and correspondence marked 'confidential', does not meet the scrutiny of an innocent mistake.
We should also state that during the litigation we received numerous 'notes' not written on any company letterhead asking us to redirect correspondence in the litigation to various residential addresses in the Applicant's area. However, neither the Applicant nor his company would either confirm or deny whether these notes came from them despite repeated requests.
Further due diligence found these addresses to be in the name of the Applicant's family members and it was our view that had we sent correspondence there, it would have been used as a weapon in the litigation to force us to come off record. Consequently, we would only correspond with the address on the court record and this ludicrous piece of litigation should serve as a caution to practitioners when dealing with such individuals.
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