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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10458
Experience:  Barrister 17 years experience
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If a H C judge realises that the defendant has committed

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If a H C judge realises that the defendant has committed fraud in equity, ignore the pleaded defence and bring this to the attention of the court?
Submitted: 8 months ago.
Category: Law
Expert:  Buachaill replied 8 months ago.

1. Dear *****, can you provide more details of the case please. What was the case about and what ruling was made by the High Court judge and upon appeal? Do you now want to make a further appeal? What remedy or solution do you want from the situation?

Customer: replied 8 months ago.
I sued my solicitor for negligence & breach of retainer when he failed to get me onto a Pub Partnership Deal with my brewery. As things turned out, if I had become a Pub partner I would have later have had the chance of acquiring the freehold of a wonderful business that I had built up over 14 years. Alas I have a habit of choosing poor lawyers, as my instructing solicitor & counsel - without consulting me - allowed into evidence, a supplemental but out-of-time statement (to "elaborate" (sic) upon his first) This new statement claimed that he had decided, at some unspecified moment, to wait for what turned out to be six weeks for a Consent Order from Bristol County Court (excluding the pub from the 1975 Landlord & Tenant Act), before beginning any work on completing the deal. HE SAID NOTHING ABOUT THIS TO MYSELF AT ANY TIME, but continued to assure me that he was working and "determined to make progress" as per our retainer, which specified SPEED as the gravamen.The brewery wrongly formed the view that as I had no excuse for the inordinate delay in completing, and by then were advising me to change my solicitor. The brewery felt that they were entitled to renege on the deal and my pub went to management. The defendant solicitor was assuring me, often on a daily basis, that he was progressing my documents and I imagined that our original retainer to get the Deal completed "as soon as possible" was his priority if he was protecting my interests. And I had no reason to think otherwise. Thus I had no information, apart from that, that I was able to give the brewery.Up until this time I had an excellent relationship with the brewery but had originally been told that my pub and all the better trading pubs, would be going managed, shortly after an acrimonious 'reverse takeover' by a London based firm.But I had many friends still left on the Board and so asked the Financial Director if, because I had been born in the village and had a tremendous empathy with the area and the pub's history, I could be considered for a Pub Partnership Deal. To the delight and relief of my wife and myself, the Brewery changed their mind and agreed to this. Thus, I was determined to waste no time in briefing my solicitor and trying to obtain 20 years security of tenure, with vastly improved trading arrangements, together with compensation for improvements.Under cross-examination, the defendant solicitor admitted (and I have all documents including all transcripts) in reply to a question from my counsel: "Did you inform your client why you were ignoring his instructions?" The reply was "I don't think I said anything about it to him at all".I think the Judge, the late Mantell LJ, was amused to think that my trial lawyers had been so naïve as to not see the danger in the "Elaborating statement", which the defence asked them to allow in eight-and-a-half months after his first statement, and was clearly perjured. I think that was why he accepted their defence and found for the defendant.By the defendant's own admission, he had, in effect committed fraud in equity, in that, if true, the second or supplemental statement was comprised entirely of information which was material to the transaction that "from our mutual positions" he was BOUND to give me.Mantell LJ was a very experienced judge, particularly in criminal cases. (He tried the Rosemary West case). But either he was just being perverse and amusing himself - or he was not aware that according to the Judicature Act of 1873, and the gradual amalgam of law and equity since, that was intended that this would achieve improvements in the administration of law and equity in ALL courts.Three Appeal judges refused to overturn the verdict. I think this was because the new lady barrister tried to argue the case upon the original pleadings - or lack of them! She realised that it must have been frustrating for my trial barrister to be faced with an unpleaded case, and that the judge had "taken against him and Mr Kessell", but clearly she had no "new" evidence - except regarding the clear case of equitable fraud, which like very many lawyers, she probably knew little.I would like to appeal to the Supreme Court, to have this case heard as an equitable review. Then I might obtain equitable relief.I was utterly ruined by this disgraceful business and lost my business and my own house. My mental and physical health have been destroyed.Regards,Mark Kessell
Customer: replied 8 months ago.
I have done what you asked me to and supplied you with a comprehensive explanation of my case and what I would like to do if I have a chance of an appeal in equity.I did not realise that I would have to spend another £44 to have an answer to my question by phone. I feel yet again that I have been misled.Mark Kessell
Customer: replied 8 months ago.
Dear Buachaill,
I have been wondering how soon I might receive an answer. I am sorry that my elaboration was long and confused, but I thought you would need to know just what went wrong.It may be worth mentioning that a barrister specialising in fraud wrote: "I have to say that I am completely astounded that your civil action was not successful. There were so many points that could have been raised by your counsel during the trial which do not appear to have been taken. Plus, the judge did not help things at all."Best Regards,Mark Kessell
Expert:  Buachaill replied 8 months ago.

1. Dear *****, the first thing you need to be aware is that when a case fails because of the negligence of barrister and solicitor, that cause of action then gets replaced by a cause of action against the solicitor and barrister. So here, you should instruct a new solicitor to issue legal proceedings against the barrister and solicitor who failed you in suing the original solicitor, as they were negligent in failing to properly bring the proceedings.

Expert:  Buachaill replied 8 months ago.

2. The second point is that you need to show a point of public importance in order to bring the appeal before the Supreme Court. At this juncture, after a Court of Appeal hearing, that would normally be the end of the matter. However, you now need your lady barrister to get together a point of public importance which will bring the appeal before the Supreme Court. My own view is that the issue of fraud in equity is a point of public and general importance and is one which you can take. However, get your lady barrister to review the papers and settle them for an appeal.

Expert:  Buachaill replied 8 months ago.

3. Be aware that Mantell LJ's decision appears perverse on its face. So you would have excellent chances of an appeal before the Supreme Court. So ensure that an appeal is taken.

Expert:  Buachaill replied 8 months ago.

4. Please Accept or Rate the answer as unless you Do so, your Expert will not receive payment for answering your question.

Buachaill, Barrister
Category: Law
Satisfied Customers: 10458
Experience: Barrister 17 years experience
Buachaill and 2 other Law Specialists are ready to help you
Customer: replied 8 months ago.
Dear Buachaill,
Thank you for your advice. It seems there was a misunderstanding when I rated your answer as BAD. It was a comprehensive answer - Excellent! I understand that I can ask another question under my membership terms. "Unless I take this case to the Supreme Court under equity, as a Litigant in person, I will be time barred. The other side will opt for laches as their defence, but I have only recently discovered the fraud, even though it occurred in 1992. The HC Trial was 1993 and the Appeal 1995. How will I get all the application forms from the Supreme Court?" Mark

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