Or how to end up with a personal liability for £100,000 within 5 years of qualification as a solicitor.
The Charles Henry/Legal Action fallout continues, and very painfully for some involved. For those who have missed the saga of Charles Henry, the pretend solicitors, previous instalments (in order) are here, here, here, here and here. For those too impatient to read the links (and they are worth reading, not least to realise just how much damage this bunch of incompetents and Walter Mittys managed to do to civil litigation rules for the rest of us), the relevant dramatis personae are:
Kevin Gregory – Not a lawyer, but done by the SDT for pretending to be one in 2007. Now subject to a General Civil Restraint Order. Main person behind and director of…
Charles Henry/Legal Action – an unregulated ‘legal services’ ‘charity’. Now subject to a General Civil Restraint Order. Subject to an intervention by the Charity Commission which has appointed managers.
Roderick McCarthy – Solicitor qualified in 2011. Recorded by Law Society as employed at Charles Henry/Legal Action between 2012 and 2014. Previously ‘explained’ to the SRA that he wasn’t employed by Charles Henry, he “only attends when he is asked to, and he doesn’t know when he’ll be attending again”.
Dr Eliand – former solicitor. Was also apparently employed by Charles Henry. Declined to explain his then status to SRA and is now apparently in the USA.
Keith Gregory – was ‘practice manager’ at Charles Henry and apparently a CILEX member. Kevin Gregory says Keith Gregory is his brother, not him. Doubt has been cast on this in several cases and so far no-one has seen them in the same room together.
Michael Shrimpton – Barrister. Convicted in 2014 of possessing indecent images of children and sentenced for 12 months in 2015 for making hoax allegations in 2012 of a threat to explore a nuclear bomb at the 2012 Olympics in London.
So, on to MA Lloyd & Son Ltd v PPC International Ld (t/a Professional Powercraft) [2016] EWHC 2162 (QB) in which we find PPC seeking wasted costs orders against Roderick McCarthy, following the usual spectacularly bad and incompetent litigation against PPC by Charles Henry ‘acting’ for MA Lloyd – in this instance, 3 failed claims, multiple failed appeals of orders and unpaid costs orders at the time MA became insolvent.
I won’t rehearse the history of the litigation, but the nature of it is summed up by the court:
The number of applications made by or on behalf of MAL, either simple applications or applications for permission for appeal, is extraordinary; as to be blunt is the vacuous nature of much of the material put forward under them. I would have had no hesitation in concluding that the conduct was improper and unreasonable in the sense explained in Ridehalgh, and that there was abuse of process in the refusal to pay previous costs orders which had been imposed, a continued series of purposeless and hopeless challenges and applications, which with few exceptions appear to have been for the ulterior purpose of attempting to outlast PPC’s willingness to litigate, and a repeated willingness to embrace and or seek delay.
None of this will surprise students of Charles Henry’s signature incompetent approach to litigation. So it should not, perhaps. come as a surprise that Mr McCarthy also failed to file any witness evidence in the wasted costs application against him, although he did belatedly apply for security for costs, apparently on the basis that he couldn’t file evidence without counsel having looked through the evidence and he couldn’t get counsel without an order for security for costs. This is of course, deluded. The application was duly dismissed with costs against Mr McCarthy. So, at the hearing, there was evidence from PPC, and from Charles Henry’s former client, but nothing from Mr McCarthy. This is all the more surprising when you realise that the wasted costs sought were in the region of £120,000.
Nonetheless, Mr McCarthy was represented by pro bono counsel at hearing, who did his level best to smuggle in evidence in the form of submissions (and who could blame him in the circumstances).
It was more or less admitted that the litigation was hopeless and should not have been pursued, at least not in this manner.
The issues boiled down to i) was this ‘solicitor-led litigation’? and ii) was Mr McCarthy employed by Charles Henry and the solicitor responsible for the periods at issue?
On i) the finding was yes. Not least because the Charles Henry client’s unchallenged witness evidence was
“Charles Henry did not always ask us before taking steps in the litigation such as making applications or launching appeals. They did not always advise us when things happened in the litigation and they did not always give us advice when asking whether we wanted to take a particular step” (paragraph 47);
that (contrary to what the Court was told in respect of one hearing in the proceedings) he never instructed Charles Henry not to attend a hearing (paragraph 48);
that he had been informed that Holroyde J gave a judgment on 24 January 2013, saying that Charles Henry the Appellants solicitors “for their part have done what they could on the Appellant’s behalf, without funds and instruction and were therefore unable to progress the matter as it should of (sic) been progressed”, and that in this the judge had been outrageously misled (paragraph 66).
The position was complicated because there was no solicitor on the record, nor were Charles Henry on the record and apparently unable to conduct litigation as not being authorised. Nonetheless, Charles Henry were ostensibly conducting the litigation and Mr McCarthy was a solicitor able to, so was taken to do so.
On ii) the finding was also yes, on clear evidence, again via the client’s witness statement, of Mr McCarthy’s involvement. Not least because of emails from Michael Shrimpton – then counsel on the case:
“It is a matter entirely for M A Lloyd and Rory (McCarthy) but changes of counsel rarely help”; “I absolutely agree with Rory and John (Key-the client) (as to a step outside the litigation); and by email of 03 February 2014 wrote to Charles Henry as to whether he should continue to be retained by MAL, “this is a matter entirely for Rory and MA Lloyd…. What I am clear about is that MA Lloyd and Rory need to be in agreement about any decision to change Counsel” (emphasis supplied, Bundle 2/23/122 at 123, 124, 125 and 126).
For myself, I consider it significant also that in the email of 3 February 2014 Mr Shrimpton stated, “I very much wish that I had seen this morning’s application. I thought with respect that we had started to work as a team, e.g. at the telephone conference on Monday. There was nothing to stop Kevin or Rory setting up a further telephone conference to ensure that a major tactical decision is taken in a structured way. Instead we had a series of phone calls over the weekend, leading to an application this morning, without my involvement. I was unaware of the application until Mr Graham sent me a copy” (emphasis supplied).
Also of note in terms of Charles Henry’s conduct of the litigation (admittedly driven by Kevin Gregory but under the ‘supervision’ of Mr McCarthy, was this:
In an email on 26 April 2014 from Charles Henry to counsel Mr Shrimpton, authored by Mr Gregory, he wrote “as per paragraph 10 of the attached Order we have permission to make an application to amend the Reply to the Defence to Counterclaim by 20 February 2014 before 4.00 which is the day and time we filed and served the N161 signed by John (Key). We must therefore include the pleadings for deceit and conspiracy and claim for £72,327.00, plus for this. I believe it is best not to expose our office or yourself is that the application is made in John’s name and the pleadings also have only John’s name on it and we come off the record when they are filed” (emphasis supplied, Bundle 2/23/128). I interpolate that this was wholly improper, as Mr Butler readily acknowledged, saying however that it was not authored by Mr McCarthy.
Some applications in the case had been signed by Dr Eliand, others by ‘Charles Henry’, but some by Mr McCarthy over the course of it between 2012 and 2014. And he had actually described himself as the solicitor acting at various points to the court (including running away from court one day when an adjournment was refused).
As to the periods of employment, it was found that Mr McCarthy had been employed by Charles Henry (AKA Legal Action) between 2012 and August 2014. However, he remained liable for steps in the case after that, because, well, here it got interesting. From the client’s evidence:
“At around that time, Mr Gregory told me that it would be better if MAL acted in person, because (a) Charles Henry had some difficulties with the Law Society (b) PPCI’s solicitor was using criticism of Charles Henry to muddy the case and (c) The personal antagonism between PPCI’s solicitor and Mr Gregory was a distraction from the real issues. However I was reassured that the same people would continue to advise MAL behind the scenes and that a new organisation, Thomas Moore, would come back on the record for us in due course.” (witness statement paragraph 91/1/15/20).
And Mr McCarthy’s own ‘evidence’ as put in submissions from his counsel was that from August 2014 he had started working for ‘Thomas More’.
So:
(i) There is the email to Mr Shrimpton of 26 April 2014 with its awareness and its avowed wish to avoid costs consequences for the legal representatives. (ii) The evidence from Mr Key, that the same people would continue to advise MAL behind the scenes under the guise of a new organisation, ‘Thomas Moore’, is unchallenged. (iii) Mr McCarthy could have submitted evidence of when he ceased employment with Charles Henry and or ceased engagement in any capacity with these proceedings, and one would expect him to, but he has not done so. (iv) All this is buttressed by the acknowledgment on his instructions to Master Kay QC in July 2016 that Mr McCarthy was the qualified solicitor in charge of the claim for the purposes of the litigation on behalf of the Claimant, at least from a date in 2012 onwards – without qualification that such had ceased at any point.
Mr McCarthy was therefore found to continue to be the solicitor in charge of the case after August 2014, taking in the issue of the doomed third version of the claim and consequent doomed applications and appeals. This is particularly interesting for reasons I’ll come back to below.
So, in short, Mr McCarthy ended up with a wasted costs order against him personally for £101,058.00. The detail is in the judgment. He escaped a further £20,000 or so, but this may not be much of a consolation. From the judgment, it appears clear that Mr McCarthy had basically allowed Kevin Gregory to run the litigation (and lie to the client) with little or no oversight, and indeed participate in doing so.
One might be tempted to feel a bit sorry for Mr McCarthy. But then again, note this, again from the client’s evidence:
“At around that time, Mr Gregory told me that it would be better if MAL acted in person, because (a) Charles Henry had some difficulties with the Law Society (b) PPCI’s solicitor was using criticism of Charles Henry to muddy the case and (c) The personal antagonism between PPCI’s solicitor and Mr Gregory was a distraction from the real issues. However I was reassured that the same people would continue to advise MAL behind the scenes and that a new organisation, Thomas Moore, would come back on the record for us in due course.” (witness statement paragraph 91/1/15/20).
The ‘difficulties with the Law Society’ being, of course, the SRA cases we have previously noted. It appears that Mr McCarthy, who told the SRA he was not employed by Charles Henry, made a seamless move to ‘Thomas More’ in 2014.
Thomas More are an unregulated ‘legal services provider’ – claiming to be a “S23 Legal Services Act 2007 Legal Service Provider”. This is odd, because Thomas More Ltd are not registered as a charity, as far as I can see. To be fair, though, its articles declare it to be a not for profit company.
One of the directors of Thomas More Ltd is Keith Gregory, the supposed brother of Kevin Gregory (has anyone seen them in the same room?). The other is a ‘lawyer’ from the USA. Their business is ‘solicitors’, which is, at the least debatable.
And apparently, Kevin Gregory, General Civil Restraint Order and all, holds himself out as practice manager and ‘lead case officer’. And of course they claim “Our solicitor can provide a private consultation at short notice”. (The whole website is hilariously bad. Or would be if the track record of these people didn’t show that clients had been suckered in for huge amounts).
One can only hope that as their only solicitor, Mr McCarthy now comes to his senses, having been lumbered with a £101,000 wasted costs liability because he didn’t do anything to stop Kevin Gregory.
One might also imagine that Mr McCarthy, given the findings in this case, might have rather more explaining to do to the SRA than he has so far deigned to do.
For everyone else, be aware that the people behind Thomas More have a track record. And it is so, so not a good track record.
PS – Thomas More now hold themselves out as experts on Charity Law. This may be because their previous incarnation as Charles Henry/Legal Action is being worked over by the Charity Commission for exactly the kind of breach of charitable objectives that this case shows they took part in.