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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Faryab v Philip Ross & Company [2001] EWCA Civ 1418 (7 August 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1418.html Cite as: [2001] EWCA Civ 1418

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE GARLAND)

		Royal Courts of Justice Strand London WC2 Tuesday, 7th August 2001

Tuesday, 7th August 2001

1. LORD JUSTICE CLARKE: I will ask Lord Justice Jonathan Parker to give the first judgment.

LORD JUSTICE JONATHAN PARKER: Introduction

2. Before the court is an appeal by Mr Farhad Faryab, who appears in person. Mr Faryab is a bankrupt. His appeal is against an order made by Garland J made on 23 February 1999 striking out an action brought by Mr Faryab against Messrs Philip Ross (a firm of solicitors). I will refer to this action as "the Philip Ross action". The judge refused permission to appeal, but permission was granted by Simon Brown and Mantell LJJ on 23 April 1999 on one only of a number of proposed grounds of appeal put forward by Mr Faryab. However, Mr Faryab seeks to expand the whole scope of the appeal to include matters in respect of which permission to appeal was refused by court on that are occasion. He also seeks leave to join as additional defendants in the Philip Ross action the legal representatives of Philip Ross in that action, namely Messrs Reynolds Porter Chamberlain and Mr Jonathan Nash of counsel.
3. In addition to his appeal in the Philip Ross action Mr Faryab also seeks permission to appeal against an order made by Neuberger J on 14 March of this year in a separate action which Mr Faryab has brought in the Chancery Division. I will refer to this action as "the Chancery Action."
4. There are three defendants in the Chancery action. The first defendant is a Mrs Naz Smyth, against whom Mr Faryab had unsuccessfully brought an earlier action. I will refer to this earlier action as "the Smyth action". The Smyth action was dismissed by Blackburne J on 23 May 1997 after a trial lasting some 80 days, and an appeal by Mr Faryab was dismissed by the Court of Appeal on 18 March 1999. The second defendant in the Chancery action is Mr Mark Golinsky, a partner in Philip Ross. The third defendant in the Chancery action is Mr Michael Sookias, a solicitor and a partner in Messrs Sookias & Sookias.
5. On 14 May of this year Neuberger J struck out the Chancery action pursuant to Rule 3.4 of the Civil Procedure Rules. He also, in a separate judgment, ordered that Mr Faryab be restrained from issuing any new proceedings or applications against the defendants to the Chancery action arising out of or (and I paraphrase) in any way connected with (a) the Smyth action, (b) Mr Faryab's bankruptcy proceedings, or (c) the Chancery action, without the prior leave of the judge (application for such leave to be made ex parte in writing to Neuberger J, to be dealt with on paper). The relevant order has been perfected as against the first and third defendants in the Chancery action, that is to say Mrs Smyth and Mr Sookias. The corresponding order against the second defendant, Mr Golinsky, has, however, not as yet been perfected. This is due, it appears, to an outstanding issue as to costs. The final form of the order as against Mr Golinsky will necessarily be a matter for the judge. But for present purposes we may proceed upon the footing that the restraint element in the order against the second defendant when perfected will, assuming the order stands, take the same or substantially the same form as the corresponding order against the first and third defendants which has been perfected.
6. I directed that the appeal and the applications for permission to appeal be listed together and that the applications for permission be made on notice.
7. Philip Ross (together with Mr Golinsky in his capacity as a second defendant in the Chancery action) appear by Mr Nash. Mrs Smyth and Mr Sookias appear by Mr Roger Ellis QC and Mr Robert Lamb of counsel.

The background

8. The complex factual and procedural background to the matters presently before the court has been set out in detail in a number of judgments, both at first instance and in the Court of Appeal. In consequence, all that is required for present purposes is a brief summary.
9. In October 1994 Mr Faryab brought an action (the Smyth action) against Mrs Smyth claiming a half share in a sum said to be in the region of £26M which Mrs Smyth had allegedly received from a source in the Middle East. The claim was brought on the basis of partnership. In the alternative, Mr Faryab claimed a sum of £2M (alternatively £4M) as due to him pursuant to an alleged settlement agreement entered into between him and Mrs Smyth, with the active participation of Mrs Smyth's then solicitor, Mr Golinsky of Philip Ross.
10. Philip Ross acted for Mrs Smyth until about mid-1995. Thereafter Mrs Smyth was represented by Sookias & Sookias, the firm of which Mr Michael Sookias is a partner.
11. Following the dismissal of the Smyth action by Blackburne J on 23 May 1997, Mr Faryab applied to the judge to vary or review his order. That application was dismissed on 9 June 1997. Mr Faryab's appeal against the orders of Blackburne J was dismissed by the Court of Appeal (Stuart-Smith, Henry and Robert Walker LJJ) on 18 March 1999, and a petition for leave to appeal to the House of Lords was not proceeded with.
12. In the meantime, on 3 November 1997 Mr Faryab brought an action against Philip Ross (the Philip Ross action), principally against Mr Golinsky and a Miss Valerie Shaul (another partner in Philip Ross), alleging breach of duty and misconduct (including fraud, deceit, blackmail, wilful breach of duty of care, malicious abuse of process and fraudulent conspiracy) and claiming damages (including, by way of special damages, the £4M claimed in the Smyth action). Philip Ross filed a defence on 6 October 1997, and on 10 October 1997 Mr Faryab issued a summons to strike out the defence and for summary judgment on the claim. The response of Philip Ross was to issue a summons to strike out the claim and dismiss the action under Order 18 Rule 19 of the Rules of the Supreme Court, those being the rules currently in force. Both summonses came before Garland J, who, by his order dated 23 February 1998 granted the relief sought on Philip Ross' summons, and dismissed the action. He refused permission to appeal.
13. In his judgment, Garland J analysed the various claims made by Mr Faryab as consisting of: (1) a claim for damages for breach of duty as solicitors; (2) a claim for damages for breach of duty as trustees in the sum of £2M-odd; (3) a claim for damages for breach of contract (in a further sum of £2M-odd); (4) a claim for damages for blackmail; (5) a claim for damages for conspiracy to injure or pervert the course of justice; and (6) a claim arising out of an alleged abuse of process. Garland J held the claim based on breach of duty as solicitors to be frivolous and vexatious. As to the claim based on trust, he concluded that that was an issue which had already been determined by Blackburne J, who had held that there was no such trust. He held that the contractual claim for a further £2m-odd was a collateral attack on the judgment of Blackburne J as to which there was no substantial fresh evidence justifying the reopening of the matter. And he held that the alleged acts relied on in support of the claim based on blackmail and conspiracy did not give rise to a cause of action.
14. Mr Faryab applied to the Court of Appeal for permission to appeal, and (following an interlocutory hearing on 3 July 1998 before Kennedy and Morritt LJJ, at which the application was adjourned on the basis that the substantive appeal would follow if permission were granted) the application came on for hearing before Simon Brown and Mantell LJJ on 23 April 1999. Before the Court of Appeal Mr Faryab contended that all the conclusions of Garland J were wrong, and he sought permission to appeal on that basis. The Court of Appeal, after carefully reviewing the allegations made by Mr Faryab in his statement of claim, concluded that permission to appeal should only be granted in respect of one ground of appeal only, namely that which related to the claim of breach of duty as solicitors. As Simon Brown LJ put it (at p 123F of the transcript of the judgments of the Court of Appeal):

"Although... the vast bulk of the plaintiff's claim rightly, indeed inevitably, struck out... it may just be possible (and I would emphasise those words) for the applicant to device a properly arguable claim against the respondent on the basis that by retainer or otherwise the respondent owed him a duty of care, and that had he fulfilled that duty then this £2m agreement, which in the event the parties never finalised, might in fact have crystallised enforceably in his favour. ... Accordingly, I share my Lord's view at that we should give leave to appeal against the striking out of that part of the case, albeit the leave should be strictly confined to this single basis of claim, essentially a claim for the loss of a chance. "

15. The Court of Appeal did not, however, go on to hear the substantive appeal. As Mantell LJ said:

"... I have to consider whether or not it is appropriate to go on and consider the substantive appeal itself. There is a temptation to do so, because the question which arises on an application for leave to appeal is in all material respects the same as that which arises on an application to strike out. Further, on this application both sides have been represented. But Mr Nash, perhaps not as alert as he might have been to the possibility of this ground being canvassed and finding favour with the court, is not for the moment in a position to argue the matter as he would wish. Consequently I would decline to go on and consider the substantive merits of the appeal."

16. Simon Brown LJ, agreeing with Mantell LJ, concluded his judgment by saying:

"Before the substantive hearing of this limited appeal the application should, as suggested by my Lord, put forward a draft amended pleading formulating how he would wish to put any such claim. That will enable the court to focus properly upon its possibilities in a way that this court has been unable to do. This court, furthermore, has been plagued with innumerable arguments ranging far and wide over the other proposed bases of claim, all of which in our judgment are worthless. By contrast, the substantive hearing will be able to concentrate on the sole question worthy of further consideration, that which we have sought to identify.

As my Lord has explained, this limited leave ought not to be taken as any encouragement to the application to carry this matter further. He should be reminded of the court's power to impose terms on which the matter may go further, power indeed under the new rules to impose terms even if ultimately minded to reinstate part of his statement of claim."

17. On 21 May 1999 a bankruptcy order was made against Mr Faryab, on the petition of Mrs Smyth based on Mr Faryab's liability for costs under an order made by Blackburne J. An appeal by Mr Faryab against the bankruptcy order was dismissed by Mr Neuberger J and an application for permission to appeal to the Court of Appeal was refused by Peter Gibson LJ.
18. Following the making of the bankruptcy order, Philip Ross negotiated a settlement of the claim in the Philip Ross action, pursuant to which the trustee in bankruptcy assigned the cause of action in the Philip Ross action to Philip Ross. However, by order of the Court of Appeal (Judge and Robert Walker LJJ) dated 4 May 2000 Philip Ross was directed to assign the cause of action to Mr Faryab. That in due course was, as I understand it, duly done.
19. In the meantime, on 10 July 2000 Mr Faryab commenced the Chancery action against Mr Golinsky and Mr Sookias. In his particulars of claim Mr Faryab alleges that:

"Mr Sookias did wilfully and dishonestly produce and/or procure and/or advance (1) false defence statement; (2) false evidence; (3) forged documents and in furtherance of an unlawful means conspiracy with Smyth and Golinsky also committed unlawful overt acts in furtherance of the aforesaid conspiracy and the court [in the Smyth action] was thereby misled."

20. The pleading goes on to set out particulars of the alleged fraud and collusion and unlawful means on which Mr Faryab relies. The relief sought is in the following terms:

"(i) A declaration that Smyth, Golinsky and Sookias did conspire with the intention of perpetrating fraud upon the Court in [the Smyth action]; (ii) A declaration that Sookias's conduct in the course of [the Smyth action] was dishonest;

(iii) An order that the judgment of Blackburne J dated 23 May 1997 be set aside as against Mrs Smyth; and (iv) an order that all costs caused and occasioned by the instant action and by the Smyth action be Mr Faryab's costs in any event."

21. The defendants applied to strike out the Chancery action. Mr Faryab countered with an application to strike out the defendants' applications.
22. The defendants' applications to strike out the Chancery action were based on a number of grounds. In the first place, they contended that the claim had no realistic prospect of success since it constituted an abuse of the process, in that it sought to mount a collateral attack on the judgment of Blackburne J in the Smyth action. Secondly, the defendants relied on the fact that the cause of action (if any) vested in Mr Faryab's trustee in bankruptcy on the making of the bankruptcy order and that it had never been assigned by the trustee to Mr Faryab. Thirdly, so far as Mr Golinsky and Mr Sookias were concerned, both of whom gave evidence in the Smyth action, it was contended that they enjoyed absolute immunity in respect of the evidence which they gave, and that in consequence the claim was bound to fail as against them. Fourthly, it was contended that as a matter of jurisdiction the declaratory relief sought should not in any event be granted.
23. In his judgment, after referring to authority, Neuberger J noted that in the Smyth action Mr Faryab was (as he put it) "running a wholesale attack on the honesty of both Mr Golinsky and Mr Sookias, as well as on the honesty of Mrs Smyth and on the way that they had, according to him, fabricated evidence and prepared the case dishonestly." The judge went on to note that in the course of his judgment Blackburne J had found Mr Sookias to be an honest witness, and had rejected the suggestion that either Mr Sookias or Mr Golinsky had been parties to a conspiracy, or had forged letters, or had collaborated to deceive the court or Mr Faryab. The judge then referred to Blackburne J's conclusions that the evidence of Mr Faryab, of Mrs Smyth and of Mr Golinsky was to a large extent unreliable. In the event, the judge found the defendants' first ground to be made out. In so doing he commented (at page 13F of the transcript of his judgment):

"If Mr Faryab is allowed effectively to re-litigate the whole case, which lasted 80 days before Blackburne J, because he was not permitted to cross-examine these two witnesses [that is a reference to Mr Sookias and Mr Golinsky] as he desired, and should now be able to do so, one would have an extraordinary (I would suggest ridiculous and quite unacceptable) result."

24. The judge also rejected Mr Faryab's submission that he was entitled to rely on an affidavit and a witness statement made by Mr Golinsky, concluding that they did not constitute new evidence since they were available before Blackburne J. He also concluded that to allow the action to continue would be inconsistent with the reasoning of Garland J (upheld by the Court of Appeal save only in the one which I mentioned earlier) in the Philip Ross action. The judge concluded that the further material which Mr Faryab had sought to put before him in the course of the hearing could not possibly invalidate that reasoning.
25. The judge expressed his conclusion on the defendants' first ground as follows: :

"In my judgment, therefore, the grounds, which Mr Faryab has advanced as being those upon which he principally relies as justifying his bringing this action, have nothing in them which justifies a second action continuing. It is I believe, not merely a matter of discretion for me; it is my positive duty in those circumstances to dismiss or strike out the action. At first sight it may appear to mean that the claim against Miss Smyth goes, but that the claims against the second and third defendants, Mr Golinsky and Sookias (who were not parties in the main action) do not go. However, it appears to me that the claims against all three of them should go. It is quite apparent from the reasoning of Garland J and the Court of Appeal in the Philip Ross action, that the rule is that one cannot, in the absence of cogent relevant evidence, mount a collateral challenge against a decision reached in a case after argument and evidence. If I permitted the present action to continue against Mr Soukias and/or Golinsky, but not against Miss Smyth that would be extraordinary in the sense that some of the alleged conspirators were in, but some were out. More significantly it would be inappropriate because I would, in effect, be permitting a collateral attack on Blackburne J's decision even though there is no fresh evidence, in the sense that I have explained that expression, which casts any significant doubt on the conclusion reached by Blackburne J."

26. The judge further concluded (on the defendants' fourth point) that the prayer for relief must fail in any event since it merely sought, in effect, a finding by the court of dishonesty and inappropriate action on the part of Mr Golinsky and Mr Sookias.
27. Neuberger J then turned to the question of witness immunity, the defendants' third ground. After referring to Marinan v and Vibart [1963] QB 234 and Darker v Chief Constable of the West Midlands [2000] 3 WLR 747, and to other authorities, the judge concluded that he would want to be satisfied rather more clearly that Mr Faryab's allegations fell within the ambit of witness immunity before he struck out the action on that ground. However, he did not find it necessary to pursue that question any further given that (with reference to the defendants' second ground) the action was incompetent in that the cause of action was at that time vested in the trustee in bankruptcy. The judge expressed his overall conclusion as follows:

"If this had been the only ground for dismissing the application I would have adjourned it so that Mr Faryab could consider the matter and, if necessary, approach the trustee. As it is, however, on the principle ground, which I have already explained [that is the defendants' first ground to which I have referred earlier], I propose to dismiss the claim and therefore to allow the application of the first and third defendants and that of the second defendant."

28. Following delivery of that judgment the defendants applied for an order restraining Mr Faryab from issuing any new proceedings or any further application against them involving or connected with the Smyth action, the bankruptcy proceedings or the Chancery action, following the terms of the injunction which was approved by the Court of Appeal in Ebert v Venvil [2000] Ch 484. In a separate judgment, Neuberger J concluded that it was appropriate to grant relief if those terms in respect of all three defendants.
29. Finally, by way of background, I should record that in the course of his oral submissions in reply today Mr Faryab handed in a document which, on its face, appears to contain a valid assignment by the trustee to him of the cause of action in the Chancery action. In the circumstances I propose to proceed upon the footing that the cause of action in the Chancery action is now effectively vested in Mr Faryab.
30. I can now turn to the various matters before the court today. I start with Mr Faryab's appeal against the order of Garland J striking out the Philip Ross action.

Mr Faryab's appeal in the Philip Ross action

31. The appeal was originally listed for hearing on 5 July of this year. For the purposes of that appeal Mr Faryab had prepared a draft reamended statement of claim ("the first draft"), which was doubtless intended to focus on the single ground on which the Court of Appeal had granted permission to appeal. Mr Faryab's notice of appeal was limited in the same way. By its written skeleton argument which was filed on 27 March 2001 Philip Ross indicated that, subject to certain specific objections to paragraphs in the draft pleading on the footing that they went beyond the single issue on which permission to appeal had been granted (an issue to which I shall return), it did not oppose the amendments or resist the appeal.
32. On 15 June of this year, however, Mr Faryab issued an application notice seeking to expand the draft pleading and to join Reynolds Porter Chamberlain and Mr Nash (as Philip Ross' legal representatives in the Philip Ross action) as additional defendants. The new draft pleading ("the new draft") goes well beyond the allegations in the first draft, and it is not confined to the single issue in respect of which the Court of Appeal granted Mr Faryab permission to appeal.
33. Given this new application, and Mr Faryab's applications in the Chancery action, I directed that all matters be listed together. In consequence, since there was not sufficient time available on 5 July, the hearing on that day was vacated.
34. The new draft introduces, at paragraphs 21 and 51 to 52, a new claim in contract between Mr Faryab and Philip Ross. Paragraph 21 reads as follows:

"By way of an alternative cause the Claimant claims that a binding oral agreement was reached between the Claimant and the 1 Defendant on 13 July 1993 and when the 1 Defendant acted as a party independent of Smyth, in the following terms:-

(i) The Claimant undertook/promised to sign and execute the document of 13 July 1993, at a time of Smyth's choosing on or before 1 July 1995, and thereby to waive/settle all his claims against Smyth and

(ii) The 1 Defendant undertook to retain the sum of £2 million, provided to the 1 defendant by Smyth, and to make monthly payments of the interest thereon to the Claimant and to pay the said sum of £2 million to the Claimant upon the signing and the execution of the document OR on 1 July 1995 if Smyth had failed to give notice to the Claimant and had thereby failed to exercise her rights [option] as set out in sub-paragraph (i) above."

35. Paragraphs 51 and 52 of the new draft read as follows:

"51. Pursuant to facts and matters pleaded in paragraph 21 above the Claimant claims that the 1 Defendant fraudulently breached the said pleaded oral agreement between the Claimant and the 1 Defendant, and in furtherance of collateral and unlawful motives set out [in paragraphs 23 to 25] above, by withholding the monthly interest payments after 28 October 1993 and by failing to pay to the Claimant the sum £2 million under the said agreement on 1 July 1995.

52. The Claimant accordingly claims damages of £2 million plus interest thereon from 28 October 1993 pursuant to section 35A of the Supreme Court Act 1981."

36. In addition, the new draft reintroduces allegations of misconduct which were included in the original pleading which was struck out by Garland J and which was before the Court of Appeal when it granted limited permission to appeal. Thus, it includes allegations against Philip Ross of concealment of documents and making a "sham disclosure" (see paragraphs 32 and 34); of preparation of false documents (see paragraphs 36 and 43); of making a false statement for the purposes of proceedings (see paragraph 42); and of giving false evidence to the court (see paragraph 46). These allegations are to be compared with paragraphs 20 to 23 of the amended statement of claim which was struck out by Garland J (the blackmail allegations); paragraphs 28, 30 and 36 (concealment of documents); paragraphs 31 and 38 (production of false documents); paragraph 34 (preparation of a false statement for the purpose of the proceedings); and paragraph 37 (giving false evidence in court).
37. In addition, as noted earlier, Mr Faryab seeks to join Philip Ross' legal representatives as additional defendants. In paragraphs 58 to 90 of the new draft, as against the legal representatives Mr Faryab alleges breach of duty of care and conspiracy to injure when acting as solicitors and counsel for Philip Ross in the Philip Ross action. Thus these allegations all post-date the order of Blackburne J dismissing the Smyth action.
38. As to the claim of breach of duty against Philip Ross as solicitors, as already noted Philip Ross (through Mr Nash) does not oppose the grant of permission to reamend the statement of claim to raise those allegations; and to that extent it does not resist the present appeal. Philip Ross does, however, resist what it categorises as Mr Faryab's attempt to reintroduce allegations going beyond the single ground on which permission was granted, being allegations which were contained in the pleading which was before Garland J when he struck out the action. The joinder of the legal representatives as parties is also resisted.
39. Hence the contested issues on the appeal are: (1) What amendments should the court allow to be made to the statement of case in the Philip Ross action? and (2) Should Mr Faryab be allowed to join the legal representatives as parties?
40. Mr Faryab submits that the law has moved in his favour since the hearing at which permission to appeal was granted (23 April 1999), in that the decision of the House of Lords in Darker has changed the law in relation to immunity of witnesses by distinguishing between what a witness says in court (including the steps preparatory to his giving evidence, for example preparation of his proof) and the fabrication of evidence such as the forging of a suspect's signature or the making of a false entry in a police officer's notebook (see per Lord Hutton at page 772H). Mr Faryab further points out that in the course of his judgment when granting limited permission to appeal Simon Brown LJ referred to and relied on the decision the Court of Appeal (to which he was party) in Silcott v The Commissioner of Police for the Metropolis [1996] 8 ALR 633, a decision which was partially overruled by the House of Lords in Darker. The relevant passage from the judgment of Simon Brown LJ in the instant case reads as follows:

"In Silcott... I have the clearest recollection of concluding that it was not open to the plaintiff there to allege against police officer witnesses that they had forged confession statements in his name."

41. However, in Darker the House of Lords disapproved the passage in Simon Brown LJ's judgment in Silcott which he had in mind when making that observation. The relevant passage (at page 640) reads as follows:

"I see no difference in principle between a police officer fabricating a record of interview in writing, and the equivalent in times past, a police officer verballing an accused; nor between say, an officer planting a brick or drug on an accused so that someone else will give truthful evidence that he himself found such a brick or drug."

42. Thus, in Darker Lord Hope of Craighead said (at page 752G):

"I would hold, with respect, that Simon Brown LJ went too far when he said that the protection of the immunity must extend to such acts to procure false evidence as the planting of a brick or the fabrication of a record of interview. He overlooked the distinction which I would draw between the act itself and the evidence that may be given about the act or its consequences. This distinction rests upon the fact that acts which are calculated to create or procure false evidence or to destroy evidence have an independent existence from, and are extraneous to, the evidence that may be given as to the consequences of those acts."

43. See also Lord Mackay of Clashfern at page 756B, Lord Cooke of Thorndon at page 758B, Lord Clyde at page 764C and Lord Hutton at page 771H.
44. Accordingly, Mr Faryab submits that, in the light of Darker, the reasoning of Simon Brown LJ in the instant case in relation to witness immunity cannot stand. Further, he submits that this change in the law effectively undermines the decision of Blackburne J in the Smyth action. Generally, Mr Faryab submits that he is entitled to access to the adversarial process in order to litigate the allegations in question, and to join the legal representatives for that purpose. He submits that the alternative would be to issue fresh proceedings and consolidate the two actions.
45. In his oral submissions to us today Mr Faryab has placed at the forefront of his submissions a quotation from the judgment in the Australian case of Plenty v Dillion [1998] ALR 353:

"If the courts at common-law do not uphold the rights of individuals by granting effective remedy they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is actively generated by the unlawful invasion of a person's rights, particularly when the invader is a government official."

46. Mr Faryab submits that the public is entitled to expect members of the legal profession to be trustworthy. He submits that witness immunity only comes into play when it is absolutely necessary that it should do so in the general public interest (see Darker). He submits that allegations against lawyers should be fully investigated. He asserts that the allegations in question are made in good faith. He says that they are not, as he put it, simply brandished for the sake of it. He reminds us that lawyers may be dishonest like anyone else. He goes on to submit that these are not new allegations, and that he has been making these complaints since 1997. He submits further that there is new evidence - irrefutable new evidence, as he would describe it - which justifies these issues being litigated.
47. Turning more specifically to the facts of the instant case, Mr Faryab accuses the legal representatives of Philip Ross of deliberately obstructing the progress of the litigation. In this respect he refers in particular to applications made for security for costs in the bankruptcy proceedings, one of such applications being held by the Court of Appeal to be premature. He also relies upon the dispute which arose as to the assignment of the cause of action in the Philip Ross action, to which I referred earlier in this judgment when setting out the factual background. He submits that in the course of that incident Philip Ross effectively lied to the trustee in bankruptcy. He submits that there has been, as he would describe it, a conspiracy on the part of the legal representatives and of Philip Ross to defraud, to commit theft, and to permit theft. He further asserts that a number of, as he puts it, sub-conspiracies have also been entered into in the course of the litigation.
48. Mr Faryab accepts that a strike out is a draconian course for the court to take and that it will only take that course in extreme circumstances. He submits, however, that in the instant case it would be appropriate for this court to make an order effectively barring Philip Ross from defending the Philip Ross action in respect of the one area, namely breach of duty, where permission to appeal has been given.
49. As to the concept of a collateral attack on an earlier decision he submits that no such concept exists in English law. He submits that it is necessary to identify the particular finding of fact which is in question and then to consider whether that finding is the result of due judicial process. He submits that there can be no question of a collateral attack in circumstances where there has been no express finding of fact in the earlier judgment. He repeats a submission which he made previously to Neuberger J that there is evidence which suffices to justify the court in reopening the issues determined by Blackburne J. He refers in this connection to statements made by Mr Golinsky both in the form of witness statements and otherwise. He complains that these were documents which he was not able to put to Mr Golinsky in cross-examination since Blackburne J declined to allow him to treat Mr Golinsky as a hostile witness. He also suggests that there has in this case been unlawful discrimination against, in effect, litigants in person in general, and he refers in this connection to Article 14 of the European Convention on Human Rights. As to the approach adopted by Neuberger J, Mr Faryab complains that effectively the judge ignored his own application to strike out the defendants' applications and that the judge ought to have specifically ruled upon that application. He further complains that Neuberger J in substance guessed at findings not expressly made by Blackburne J.
50. In relation to the judgment of Garland J Mr Faryab in his written arguments submits that Garland J misunderstood the principles relating to abuse of process, in that he regarded relitigation per se as an abuse of process. Mr Faryab relies in this connection on a passage from the judgment of Auld LJ in Bradford and Bingley Building Society v Seddon [1999] 1 WLR 1482 at 1492H where Auld LJ said:

"In my judgment mere relitigation, in circumstances not giving rise to cause of action or issue of estoppel, does not necessarily give rise to abuse of process. Equally, the maintenance of a second claim which could have been part of an earlier one, or which conflicts with an earlier one, should not, per se, be regarded as an abuse of process. Rules of such rigidity would be to deny its very concept and purpose."

51. Mr Nash, for Philip Ross, submits that, by inviting the court on the hearing of the appeal to allow him to reintroduce allegations contained in the pleading which Garland J struck out, Mr Faryab is in effect seeking to expand his appeal beyond the single ground on which permission to appeal was granted. Mr Nash submits that the court should not allow him to do that.
52. Mr Nash submits that the effect of giving the limited permission is to preclude this court from allowing Mr Faryab's appeal to proceed on any additional ground. In the first place, he submits that there is no jurisdiction enabling the court to do so. In support of this submission he relies on the decision of Sir Andrew Morritt V-C in Fieldman v Markovitch (unreported, judgment delivered on 4 July 2001). Unfortunately we have been provided only with the briefest of reports of this decision.
53. In the alternative, even if jurisdiction to entertain further grounds of appeal exists, Mr Nash submits that it is not appropriate in the instant case for the court to exercise that jurisdiction. In this connection he relies on the Court of Appeal decision in Yorkshire Bank v Hall [1999] 1 WLR 1713, where Robert Walker LJ said (at page 1725G):

"... once an appeal reaches the Court of Appeal for hearing, its power to regulate its own proceedings, and to permit new points to be taken, cannot be rigidly limited by the terms in which leave has been granted. ... Nevertheless the power should be sparingly exercised, for the reasons stated in [the relevant] Practice direction. Where (as here) a point has been considered twice by the full court, and leave to appeal on that point has been expressly refused on each occasion, it would be very rare indeed for the appellant to be permitted to reopen the point at the hearing of the appeal."

54. As to relitigation, Mr Nash accepts that the mere fact that litigation will involve consideration of issues which have already been judicially determined does not, of itself, mean that the litigation is an abuse of process. However, he points out that in the instant case the Philip Ross action proceeds upon the basis that Mrs Smyth was obliged to pay Mr Faryab £4m (or alternatively £2m), which was a basis rejected by Blackburne J after a full trial (and Blackburne J's judgment was upheld on appeal). Mr Nash submits that in the circumstances it is hard to imagine a clearer case of abusive relitigation. He submits that Garland J was clearly right to strike out the action on that basis (and he points out that in that respect his judgment was affirmed by the Court of Appeal when granting limited permission to appeal).
55. As to witness immunity, and Mr Faryab's reliance on the Darker case, Mr Nash submits that that case has not altered the law as to immunity of witnesses in any material respect so far as the instant case is concerned. He points out that Garland J applied the principle of immunity stated by Salmon L in Marinan v Vibart, a decision which was considered by the House of Lords in Darker without any suggestion of disapproval. He further submits that whereas the distinction drawn in Darker was between giving false evidence at trial and fabricating a false case, Mr Faryab's attack against Mr Golinsky is that as a witness for Mrs Smyth in the Smyth action he set about giving false evidence and producing false documents to support that evidence at court. He submits that this alleged course of conduct falls fair and square within the boundaries of the immunity confirmed in Marinan.
56. Further, Mr Nash submits that even if all his earlier submissions are rejected, Mr Faryab's conspiracy claims have no real prospect of success, since, given Blackburne J's conclusion that neither Mr Golinsky, nor for that matter Mr Faryab or Mrs Smyth, were reliable witnesses, even if Mr Faryab were able to prove the existence of the alleged conspiracy, he would be wholly unable to establish that it was the existence of the conspiracy which caused him to lose the Smyth action.
57. Finally, so far as the allegations against Philip Ross are concerned, Nash submits that the new contract claim is in any event statute-barred (the alleged breaches occurred on 28 October 1993 and 1 July 1995), and there appears to be no basis upon which any extension to the primary limitation period of six years might be available. In any event, he submits, the determination of such questions should be a matter for the court at first instance rather than the Court of Appeal.
58. As to the allegations against the legal representatives, and the application to join them as additional defendants, Mr Nash (appearing for this purpose both in person and on behalf of Reynolds Porter Chamberlain) contents himself with the submission that since the alleged cause of action arose after proceedings were issued (in that they relate to alleged dishonest conduct in the course of these very proceedings) the proper course would be for Mr Faryab to commence a fresh action. In any event, he submits, the Court of Appeal cannot be the appropriate forum in which to debate for the first time the question whether such amendments should be allowed, since they would in practice be no appeal from the Court of Appeal's decision.
59. As the House of Lords made clear in Hunter v Chief Constable of West Midlands [1982] AC 529, relitigation will not constitute an abuse where there is new evidence which "entirely changes the aspect of the case" (see per Lord Diplock at 545, a passage quoted by Neuberger J in his first judgment in the Chancery action at page 7D-8B of the transcript of that judgment). However, Mr Faryab has not, in my judgment, been able to point to any such new evidence in the instant case. It follows, in my judgment, that in so far as the allegations sought to be made would, if allowed, amount to a collateral attack on the judgment of Blackburne J, permission to include them should be refused.
60. In considering the extent to which allegations sought to be made by Mr Faryab against Philip Ross constitute an abuse of process as amounting to a collateral attack on the judgment of Blackburne J in the Smyth action, a distinction must in my judgment be made between those allegations which are relevant to the breach of duty claim (in respect of which permission to appeal has been granted) and those which are not. In my judgment, allegations relevant to the breach of duty claim - that is to say, relevant to the existence of a duty of care, and/or to breach of that duty, and/or to resulting loss - are outside the scope of the "collateral attack" principle. This is because the breach of duty claim is not in any sense a rerun of the Smyth action: rather, it starts where the Smyth action finished, in that the basis of the breach of duty claim is that had Mr Golinsky done what he should have done in the course of negotiations, Mr Faryab would have had the benefit of an enforceable agreement. It follows, in my judgment, that the proper determination of the breach of duty claim should not be fettered by considerations of collateral attack, and that all issues relevant to that claim (in the sense which I have just indicated) should be open for determination at the trial of the action, notwithstanding that the same or similar issues may have been determined by Blackburne J in the Smyth action.
61. On that footing, I turn to the question of the appeal and the amendments. In the first place I can see no conceivable basis for Mr Faryab's application for an order in effect debarring Philip Ross from defending the breach of duty claim. There simply is no substance in that application.
62. I turn then to the new draft. In my judgment all the additional amendments which Mr Faryab seeks to make (apart from the allegation of contract to which I referred earlier) fall outside the scope of the single ground on which permission to appeal was granted. As such, they represent, in my judgment, a clear abuse of process in that they constitute essentially the same collateral attack on the judgment of Blackburne J which Garland J rejected and as the Court of Appeal subsequently concluded on the application for permission to appeal, rightly rejected. A comparison between the amended statement of claim which was before Garland J and the Court of Appeal and the new draft makes this clear (I referred earlier in this judgment to the relevant paragraphs in each). This is not mere relitigation, to my mind. Rather, it is an attempt to continue the war by reopening issues which have already been disposed of by Blackburne J in the Smyth action. Similarly, those paragraphs of the first draft to which Philip Ross object are also, in my judgment, objectionable for the same reason: they are paragraphs 22, 23, 29, 30, 32 and 33. In so far as those allegations go anywhere it seems to me that they simply amount to an attempted attack on the decision of Blackburne J in the Smyth action.
63. In the light of that conclusion I do not find it necessary to consider the distinction drawn by the House of Lords in Darker in relation to witness immunity between on the one hand giving false evidence and on the other hand fabricating a case - a distinction which may not always be easy to draw. Like Neuberger J in the Chancery proceedings, I would for my part have been chary of striking out a case on the basis of that distinction.
64. Nor, for the same reason, do I find it necessary to address the question whether the Court of Appeal has jurisdiction to allow the appeal to proceed on grounds other than that in respect of which permission to appeal was expressly granted. I am content to proceed on the footing that, assuming (without deciding) that such jurisdiction exists, it is would not, in any event, be appropriate to exercise that jurisdiction in the circumstances of the instant case.
65. As to the allegations sought to be made against the legal representatives, and the application to join them as additional defendants, I accept Mr Nash's submission to the effect that there is no justification for joining them as defendants in the very proceedings in which they are said to have misconducted themselves. If Mr Faryab wishes to proceed with these allegations, his proper course (subject to obtaining any requisite leave of the court in relation to Mr Golinsky) is to bring another action.
66. I return, however, to the new allegations relating to the existence of a contract (allegations which I quoted earlier in this judgment). As I understand the position, it is not suggested that these allegations are subject to challenge on the basis of collateral attack. Rather it is accepted by Mr Nash that those allegations are made now for the first time. In the circumstances, it seems to me that the appropriate course is that this court should not allow their inclusion on the footing that it will be open to Mr Faryab to make an application for their inclusion to the judge in the course of the action. I should say in this respect that Mr Nash (very properly, in my judgment) accepted that an application to include those allegations by way of amendment would not be subject to the restraint element in the order made by Neuberger J (to which I shall come later in this judgment).
67. I would therefore allow the appeal to the extent to which it is uncontested (that is to say, on the basis of the allegations to which Philip Ross has not objected as being outside the scope of the one ground on which permission to appeal was granted), but I would refuse Mr Faryab's applications for permission to make any further amendments and refuse his application to join the legal representatives as parties to the Philip Ross action.

Mr Faryab's applications in the Chancery action

68. I can now turn to Mr Faryab's applications in the Chancery action.
69. I turn first to Mr Faryab's application for permission to appeal against that part of the order of Neuberger J which struck out the Chancery action. Mr Faryab, in his written material, makes a number of what I may describe as "procedural complaints", including a complaint that the order as against the second defendant, Mr Golinsky, has not been perfected.
70. Mr Faryab also complains that the judge has made editorial corrections to the transcript of the judgment. He also (as I indicated earlier) objects to the approach which Neuberger J adopted in hearing the applications.
71. On the substance of the applications for permission to appeal, Mr Faryab submits that the striking out of the Chancery action constitutes a breach of Article 6 of the European Convention on Human Rights (right to a fair trial). In particular, he submits that he was not allowed a reasonable opportunity to consider the written skeleton arguments submitted by the defendants. He submits that Neuberger J was unconsciously biased in favour of lawyers, and against him as a litigant in person: hence his invocation of Article 14 of the Convention. He submits that the judge, before considering the defendants' applications to strike out, ought to have considered his own application and dealt with it expressly.
72. In response, the defendants submit, so far as the merits of the application for permission to appeal against the strike out are concerned, that Mr Faryab's allegations (which he described in his notice of appeal as "allegations of forgery, fraud and conspiracy") were all ventilated at length in the Smyth action and were rejected by Blackburne J, whose decision was subsequently upheld by the Court of Appeal. It is pointed out that in paragraph 2.1 of his notice of appeal Mr Faryab acknowledges that the substance of his complaint was submitted by way of argument to the Court of Appeal. Accordingly, the defendants submit that this is not mere relitigation, but an attempt to relitigate allegations which have already been litigated and determined in the Smyth action.
73. The defendants accept that relitigation of that kind, although prima facie an abuse of process, will not be an abuse where there is new evidence which "entirely changes the aspect of the case" (see Hunter ...referred to above)). That was the approach of Garland J in the Philip Ross action, which was approved by the Court of Appeal on the application for permission to appeal. The defendants submit that there is no such new evidence in the instant case, and that the judge was right to reject Mr Faryab's submission to the contrary.
74. As to the dictum of Auld LJ in Bradford and Bingley Society case, the defendants point out that, having referred to mere relitigation as not necessarily being an abuse, Auld LJ went on to say (at page 1493B) that "some additional factor is required such as a collateral attack on a previous decision." They submit that the Chancery action is a clear example of a collateral attack on an earlier judgment.
75. The defendants further submit that, as the judge concluded, there is no jurisdiction to grant a declaration which takes the form of a finding of fact, as opposed to a declaration as to the rights of the parties.
76. In first place there is, in my judgment, no substance whatever in what I have described as Mr Faryab's procedural objections. In particular, as the judge records in his judgment (see the transcript at page 4G) he offered Mr Faryab a short adjournment to consider the defendants' written skeleton arguments, but Mr Faryab apparently did not wish to avail himself of that opportunity. Nor can I see any basis at all for the allegation of unconscious bias on the part of the judge. Indeed, it is plain from reading the transcript of his judgment that the judge was scrupulously careful to deal fairly and fully with all Mr Faryab's submissions. To my mind, his judgment is a model of fairness and even-handedness.
77. Turning to the substantive issue so far as the strike out is concerned, in my judgment Neuberger J was right to strike out the Chancery action as an abuse of process, for the reasons he gave. As I see it, the Chancery action is no more and no less than an attempt to procure, in effect, a retrial of the Smyth action in the absence of the kind of new evidence referred to in Hunter. As such, it is plainly an abuse, in my judgment. For that reason, I consider that an appeal against the striking out of the Chancery action would have no real prospect of success, and I would accordingly refuse permission to appeal against that part of Neuberger J's order.
78. Finally, I turn to Faryab's application for permission to appeal against the second part of Neuberger's order, restraining him from (in broad effect) taking further proceedings or making further applications arising out of or connected with the Smyth action. For convenience, I will refer to this part of order as "the restraining order".
79. Mr Faryab makes once again a number of procedural complaints about the making of the restraining order. He points out that the skeleton argument of Mrs Smyth and Mr Sookias was served on the afternoon before the hearing. He asserts that this was contrary to assurances which had been given on their behalf that they would disclose their case at least 14 days before the hearing.
80. Mr Faryab further submits that the restraining order was wholly inappropriate in the circumstances, that it was in breach of his rights under Article 6 (already referred to), and that in any event he had offered undertakings which are adequate to protect the defendants.
81. The defendants for their part point out that the judge, as I recorded earlier, offered Mr Faryab a short adjournment; an offer which was not accepted. They deny that any such assurance as is alleged by Faryab was ever given, and they point out that Mr Faryab did not refer to any such alleged assurance in the course the hearing before the judge. In any event they submit that Mr Faryab cannot have been taken by surprise by the points advanced on behalf of the defendants since in their evidence (which took the form of witness statements by a Mr Savani, a solicitor with Sookias & Sookias) the abuse of process point was clearly taken. Moreover, they submit, Mr Faryab served a number of witness statements which demonstrate that he fully understood the nature of the case sought to be made against him. They further point out that despite Mr Faryab's assertion that he was in possession of new documentary evidence, he failed to produce any such documents or even say what they were.
82. The defendants further submit that Faryab's conduct of litigation prior to the hearing before Neuberger J provided ample ground for his conclusion that there was a risk that, unless restrained from doing so, he would simply continue to issue proceedings relating to the matters which were determined against him in the trial of the Smyth action. The fact that Mr Faryab saw fit to commence the Chancery action is, the defendants submit, entirely consistent with this assessment. They submit that the commencement of the Chancery action demonstrates a complete absence of restraint on the part of Mr Faryab's part when it comes to litigation touching directly or indirectly on his claims against Mrs Smyth, coupled with an inability on Mr Faryab's part to make a reasoned assessment of his grievances in connection with those matters.
83. The defendants stress that the restraining order was made by the judge in the exercise of his discretion. They submit that there is no basis upon which the Court of Appeal could interfere with his exercise of that discretion in the circumstances of the instant indicate.
84. Once again, I can see no substance whatever in Mr Faryab's procedural complaints.
85. As to the substance of the application for permission to appeal against the restraining order, in my judgment the judge was amply justified in making the restraining order in the circumstance of the instant case. I accept the submission that the commencement of the Chancery action is a clear illustration of Mr Faryab's desire to consider the saga of this litigation, notwithstanding the dismissal of the Smyth action. I have no doubt at all that, if Mr Faryab can identify an opportunity to commence further proceedings or make further applications arising, directly or indirectly, out of his allegations against Mrs Smyth and against Philip Ross (and Mr Golinsky) he will do all he can to take it. Hence the clear need for a filter on any such proceedings or applications in the form of the requirement for the prior leave of the court. There can be no question, in the circumstances, of any breach of Article 6. If Mr Faryab can satisfy the court that a proposed proceeding or application has substance, no doubt leave will be granted. The requirement for leave, far from preventing access to justice, makes access to justice more readily available to those litigants who have issues of substance to litigate.
86. In my judgment, an appeal against the making of the restraining order would have no real prospect of success. Accordingly, I would refuse that application for permission also.
87. LORD JUSTICE CLARKE: I agree. I would only add this with regard to the two points upon which the appellant particularly focused in the course of his oral submissions today. The first relates to the conduct of the respondents since 1997. Nothing in this decision affects the validity, or otherwise, of the appellant's submissions, save for this. Whether they are valid or not cannot to my mind lead to the conclusion that Philip Ross should not be entitled to defend the appellant's claim for damages for breach of duty in this action. That question should be determined on its merits in accordance with the general principles identified by my Lord.
88. The second point relates to the appellant's challenge to the order of Neuberger J striking out the Chancery action. The prayer in the statement of case which was struck out contains only one application for substantive relief, apart from costs; that is an application for an order that the judgment of Blackburne J in the Smyth action be set aside. It is thus clear that a central purpose of the Chancery action was to mount a direct attack on the judgment of Blackburne J in the Smyth action.
89. Given the absence of any new evidence, let alone new evidence which entirely changes any relevant aspects of the case, Neuberger J was, in my opinion, entirely justified in holding that the appellant should not be permitted to relitigate the Smyth action. The result, therefore can, I think, be summarised as follows. The appeal against the order of Garland J will be allowed so far as necessary to permit the appellant to allege a breach of duty of care whether formulated in contract or tort. The appellant's application for permission to reamend the statement of case succeeds in part. Permission is granted limited to the allegations made in the draft reamended statement of claim (Bundle 1, Tab 6, page 41) with the exception of paragraphs 22, 23, 29, 30, 32 and 33. The appellant will be entitled to proceed with the claim so formulated. The appellant will also be entitled to seek permission further to reamend the reamended statement of case by adding a claim for breach of contract as alleged in paragraphs 21 and 51 of the new draft.
90. It is conceded by Mr Nash that that application can proceed without the necessity for seeking permission to make it under the Ebert order made by Neuberger J. If the appellant wishes to advance a claim against Philip Ross, Mr Golinsky, Reynolds Porter Chamberlain or Mr Nash based upon events since 1997 he must do so by action. It is correctly accepted by Mr Nash on his own behalf, and on behalf of Reynold Porter Chamberlain that the appellant does not need permission to do so under the Ebert order. However, it appears that such permission would be required for proceedings against Mr Golinsky. I am not sure what the position is in that regard in relation to Philip Ross. The applications for permission to appeal against the orders of Neuberger J are refused, and, for the avoidance of doubt I should add that I can see no basis for holding that any future applications should not be considered by Neuberger J.
(Submissions on costs)
91. LORD JUSTICE CLARKE: We have reached these conclusions. First, so far as costs are concerned we recognise that in the case of the first and third defendants Mr Faryab was merely making an application for permission to appeal. But in a complicated case of this kind it is not unlikely that the respondents will be put on notice and it appears to us to be right that Mr Faryab should pay the first and third defendants' costs, although we think it would be fair if they were simply ordered to be paid on the standard basis, plus the costs of the appeal. We are not interfering in any way with the costs below. We think that this is an appropriate case for a detailed assessment. We decline to make any further order at present.
92. So far as the second defendant and Philip Ross is concerned in relation to the appeal in the Chancery action, it appears to us that the applicant should pay the second defendant's costs, that is to say the costs on the application for permission to appeal in the Chancery action.
93. So far as the appeal is concerned it appears to us that the appellant should pay the bulk of the costs before Garland J and we direct that he pay two-thirds of those costs.
94. As to the costs of the application for permission to appeal and of the appeal are concerned, we would order the respondent to pay part of the costs before Simon Brown and Mantell LJJ. On the other hand we recognise that, so far as this hearing is concerned the respondent has essentially won, given the concession made somewhat belatedly but a long time before this hearing in all thee circumstances we have decided that the appellant should pay half of all the costs of the appeal including the application.
95. Those orders are without prejudice to the respondents' case that it should be entitled to set off those costs against any liability for costs under previous orders of the court.
96. The only remaining matter is what further directions should be given. We direct that the appellant, the claimant, serve a new statement of case in the form to which we referred in our judgments, namely the first draft reamended statement of case with the paragraphs to which we referred, namely 22, 23, 29, 30, 32 and 33 deleted.
(Application refused; appeal dismissed with costs; applicant to pay half of all costs of the appeal, including the application).