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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 >> James, R (on the application of) v Secretary Of State For Department Of Trade & Industry [2001] EWCA Civ 965 (15 June 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/965.html Cite as: [2001] EWCA Civ 965

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

		Royal Courts of Justice Strand London WC2A 2LL Friday 15 June 2001

1. LORD JUSTICE SEDLEY: These two applications for permission to appeal are made by Mr James, a former chartered accountant. I say "former" for reasons to which I will come. He was a former director of Astra Holdings Limited.
2. The appeals that he wishes to bring relate to two applications which he made to Latham J, as he then was, as long ago as the latter part of 1999. They concerned disciplinary proceedings, which at that time were current, before the Disciplinary Tribunal of the Institute of Chartered Accountants. The proceedings related to an invoice issued to a subsidiary company of Astra Holdings which was alleged to have been fraudulently created in order to enable the holding company to be listed. Mr James contends that behind that accusation lay a complex history of espionage and official malpractice, some of which featured in the Scott Inquiry although it was not resolved by it.
3. It is not necessary to set out the history more fully. It is sufficient for present purposes to say that, following the discontinuance in April 1998 of disqualification proceedings under the Directors Disqualification Act 1986, the disciplinary proceedings which had been in abeyance since 1983 were restored. In July 1999 formal complaints were finally laid against Mr James. Since then he has actively been seeking production by the DTI of files which he says will enable him to negative the contention that this invoice, with which he in any event denied any involvement, was dishonest. The DTI have at various times said that the files contain inspectors' working documents and are therefore immune from production.
4. Mr James has put before me a letter of 23 July 1998 in which the DTI tells the Joint Disciplinary Scheme of the ICA that the department agrees to the disclosure to the disciplinary body and its authorised investigators of a long list of files which includes the three to which Mr James' application to Latham J related. Those are files 120, 121 and 106. But Mr James says that, when examined, the boxes which were those files turned out to have been gutted, so that the relevant documents still need to be sought out.
5. These two judicial review applications came before Latham J at different times. The tribunal was due to sit on 2 December 1999. Its chairman, Mr Roger Henderson QC, refused to vacate that date to enable Mr James to challenge the DTI's refusal to produce the missing documents. On 30 November, therefore, Mr James applied for permission to seek judicial review, first to quash the proceedings but, in the alternative, to compel their adjournment. This application was refused by Latham J on both limbs. On the first limb he held that it was far too late to impugn the decision to proceed which had been known to Mr James since April 1998. This I do not understand Mr James now to be challenging. On the second limb the judge noted that in the disqualification proceedings, by then aborted, Cresswell J had refused disclosure of the files. Latham J held that it would not be appropriate in these circumstances to intervene in the disciplinary proceedings when a separate application for judicial review of the DTI's refusal to produce the documents was pending and therefore unresolved.
6. However, when the Disciplinary Tribunal sat on 2 December 1999, it adjourned its hearing to allow the application against the DTI (the second of the applications for judicial review) to be heard. Latham J heard it on 6 December and refused it. On this occasion there was a challenge to the propriety of his sitting because it had come to Mr James' knowledge in the meantime that, as Mr David Latham QC, the judge had advised the Export Credits Guarantee Department of the DTI and, so Mr James had heard, had advised a company, Allivane Limited, which had been involved in the Scott Inquiry. Latham J declined to recuse himself and went on with the hearing. I shall return to the implications of this at the end of this judgment.
7. Latham J held that it was not appropriate for the court, acting by itself, to determine the relevance of the two files (files 120 and 121) to which at that stage the application related. The judge said that that was the task of the tribunal, which, although it had no power to order the DTI to disclose the missing documents, would clearly be heeded by the DTI if the tribunal decided that production was necessary in the interests of justice to Mr James.
8. That seems to me to have been a just and sensible course and view to take. It will have had two further advantages for Mr James which he may not have appreciated. One was that it enabled him to request from the tribunal not only the missing contents of the two files I have mentioned, but those of a third file, 106, which Mr James raised before the judge for the first time but which had not been specified in his application. Secondly, if the tribunal did request production, but the DTI without good cause refused, it was at least possible that mandamus would then lie and there would be a very good argument in support of it in the absence of good reasons advanced by the DTI to the court for not complying with the tribunal's request. It also meant that if the tribunal declined to make such a request, but there were grounds upon which it could be said that it had denied Mr James justice by so doing, that too might have been (I express no concluded view on it) open to challenge.
9. This was the situation when I read the papers. But, the papers did not disclose what happened thereafter on the resumption of the disciplinary proceedings. Mr James has come to court with a lay representative, Miss Rayne, to assist him in presenting his case. Miss Rayne tells me she has been heard on other occasions by judges of this court and other courts as a lay representative of litigants in person. I asked her what had happened on resumption of the proceedings. She told me nothing had happened. I did not believe her, and when I asked Mr James to tell me, he told me something that Miss Rayne should have known or have admitted she did not know, which was that the proceedings had gone to a conclusion, that Mr Henderson's tribunal had adjudicated against Mr James and had struck him off for life as an accountant and had awarded costs against him, and that in June 2000, an Appeal Tribunal, chaired by Sir Oliver Popplewell, had dismissed his appeal.
10. If somebody is going to come to this court as a lay representative and be heard with the same respect as barristers and solicitors, they have to observe the same standards. I regret to say that Miss Rayne has not done so. However, Mr James, who took over from that point, has been extremely candid, helpful and clear in telling me what I needed to know, and so I have wanted for nothing in the event.
11. The decision of Latham J on each of the matters before him was, in my view, unimpeachable; indeed it was inevitable. Judicial review against the tribunal at the stage at which it was sought was unnecessary because the tribunal had yet to decide whether to ask the DTI for the missing documents, and judicial review against the DTI was premature for exactly the same reason, namely that it had not yet been asked for them.
12. There was therefore no realistic prospect of success before Latham J and there is none, even more so, before me. I say the latter because all the water has now passed under the bridge in relation to the disciplinary proceedings. If there was to be a challenge, it ought to have been to the refusal of the Henderson tribunal, or at the latest of the Popplewell tribunal, to seek disclosure of further documents from the DTI. Those would have been fresh applications, not renewals or appeals against the applications made in 1999 to Latham J.
13. I have dealt with the substance of the application for permission to appeal in fairness to Mr James, but it is necessary to observe that both applications are well over a year out of time. That against the tribunal was lodged on 30 January 2001, that against the DTI on 10 May 2001. In my judgment, this alone is fatal because Mr James has not given me an adequate explanation of the delay. His explanation is that he had much on his plate and on his mind. That I understand, but it is not enough to excuse such delay and to lead the court to enlarge time.
14. I would also add that the grounds set out in the notices of appeal, unelaborated as they were and still are by any skeleton argument, are extremely confused. It was only today, and on a reading of the papers themselves, that it became possible to discern what the issues were.
15. I have left until last the question of the possible self recusal of the judge. I have mentioned the grounds on which Mr James says that he should have recused himself. These are difficult problems in a judiciary which, by definition, is drawn from former members of the practising profession. There is no doubt that occasionally conflicts can arise which make it impossible for a judge to sit in a case involving somebody who was once his client. But what has passed between barrister and client or solicitor and client is a matter which remains under an irrevocable cloak of legal professional privilege; so there is no question of the judge being able to discuss with the parties what it was that he advised the client about. That being so, it must be for the individual judge to consult his memory and conscience and decide (whether or not the point is raised in open court) whether there is anything that is potentially embarrassing in his continuing to hear the case.
16. It seems to me that the judge must have done this because the matter was drawn to his attention by Mr James. Mr James has reminded me of Lord Hewart's well-known dictum about the need for justice to be seen to be done. But that is not a solution of this problem; it is only a way of posing it. It seems to me that in the absence of any evidence that there was something in the judge's former professional relationship with the DTI and the company which potentially impinged on the issues before him in these applications, there was nothing that made it impossible for justice either to be done or to be seen to be done.
17. I would add that, even if Mr James is right in his submission that the judge should have recused himself, he will gain nothing by it because all that would happen is that the judge's decision would be undone and there would remain no decision at all whether in Mr James' favour or, it is true, against him. However, if he were then to renew the applications, the situation would be infinitely worse for him now than it was then because we know what the subsequent history has been. In other words, wiping the slate clean could not achieve anything of benefit now, any more than at an earlier stage, for Mr James.
18. For these reasons I am not prepared to give permission to appeal. I realise what a prolonged agony this business has been to Mr James. The years that have gone by are not a credit to the disciplinary system, but the matters that have been open to challenge have been challenged and the time for other challenges has passed. I have sympathy with him in his feeling of grappling with an impenetrable bureaucracy, but that is not something with which it is possible for this court, on these applications, to assist him.
19. I would refuse these applications.