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IN THE CENTRAL LONDON COUNTY COURT No. B10CL333

Royal Courts of Justice


Thomas More Building
Strand, London WC2A 2LL

Monday, 17 June 2019

Before:

HIS HONOUR JUDGE GERALD

B E T W E E N :

(1) VICTUS ESTATES (2) LTD


(2) VICTUS ESTATES (3) LTD
(3) MR DEEPAK RAJ AGRAWAL
(4) SIMPLE TO FINANCE LIMITED Claimants

– and –

(1) DARREN EDWARDS


(as trustee in bankruptcy for Glenroy Charles)
(2) BEVERLEY AUGUSTIN
(3) CLAUDETTE CECILIA JNOWLEWIS
(4) MISS MONICA MUNROE Defendants

– and –

SHAWBROOK BANK LIMITED Third Party

AND BETWEEN: Claim No. A02CL524

(1) JULIETTA SONIA BENJAMIN Claimant

– and –

(1) VICTUS ESTATES (1) LIMITED


(2) ONESAVINGS BANK PLC
(3) DARREN EDWARDS
(as trustee in bankruptcy for Glenroy Charles) Defendants

_________
JUDGMENT

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APPEARANCES

MR M. HENDRON (via Direct Access) appeared on behalf of the First, Second and Third
Claimants (Claim No. B10CL333) and the Third Defendant (Claim No. A02CL524).

MR. CHRIS ROYLE (instructed by Lupton Fawcett LLP) appeared on behalf of the Fourth
Defendant (Claim No. B10CL333).

MISS A. EILLEDGE (instructed by Rexton Law LLP) appeared on behalf of the Claimant
(Claim No. A02CL524).

MISS J. HAYES (instructed by Lightfoots LLP) appeared on behalf of the Third Party
(Claim No. B10CL333) and the Second Defendant (Claim No. A02CL524).

__________

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HIS HONOUR JUDGE GERALD:

1 This is the first hearing day of a trial which has been listed for ten days in total and is of some
complexity involving, effectively, two parallel cases involving properties which were sold
and in which the sale was completed on 17 May 2013, in respect of which two of the respective
owners, a Miss Benjamin and Miss Munroe, claim to be beneficial owners who have each
been defrauded by their erstwhile intimate partner Glenroy Charles, the fraud or forgery being
of their respective signatures on the respective transfers. Whilst each of them had separately
purchased the properties as expressed beneficial joint tenants, each of them claims to be
entitled to the entirety of the beneficial interest in each of their properties. They are both
separately represented by Miss Eilledge and Mr Royle respectively.

2 In addition to that, there are the purchasers of those properties, respectively Victus Estates (1)
Limited and Victus Estates (2) Limited, which companies were the special purchase vehicle
of, and incorporated by a Mr Agrawal who was also the guarantor of the bank loans used by
those companies to purchase those properties. Those three parties are represented by
Mr Hendron of counsel, save to say that Victus Estates (1) Limited has, in breach of court
order, been struck off the Register of Companies. The Treasury Solicitor has indicated that it
is taking, essentially, a neutral stance and that, whilst it has been struck off so it technically
doesn’t exist any more, for all practical purposes, certainly at this stage of the proceedings, I
will proceed on the footing that Mr Hendron has been treated as making representation on its
behalf, even though, of course, technically, he cannot.

3 The final group of litigants are the lenders of the respective purchases, which is Onesavings
Bank Limited and Shawbrook Bank Limited, respectively, both of whom are represented by
Miss Hayes. They put in issue whether or not the signatures were forged and they also put
various other matters in issue and, ultimately, will be seeking either subrogation or
enforcement of an equitable charge in relation to the two properties.

4 This litigation has been going on for three or four years and has been the subject of quite a lot
of orders made attempting to have matters dealt with as cost-effectively, efficiently and
coherently as possible. So it is that the essentially two separate cases, in addition to which I
suppose you could say there is a third case of the lenders seeking subrogation and then
possession of the respective properties and orders for sale, have come to be tried at the same
time.

5 For reasons which I will come to in a moment, Mr Hendron has made an application for me
to recuse myself from the hearing of this matter. The reason why he has made that oral
application is because at the outset of the trial this morning I felt obligated to disclose material
which had come to my attention during the course of Friday. Most of what I will be referring
to revolves around the somewhat irregular communications of the solicitor, Warren Grant,
who acts for Miss Benjamin and, therefore, is Miss Eilledge’s instructing solicitor. I should
say that, as far as I am aware, Miss Benjamin was completely unaware of the communications
to which I am about to refer and nothing I say reflects in the slightest upon her. That is my
present understanding, and I have no reason to think otherwise.

6 During the course of last week, my clerk has been attempting to obtain skeleton arguments
from all of the various parties. Whilst parties are always ordered to file things by e-mail at
CJSKEL, it is a fact of life that that order is honoured in the breach. So it was that my clerk
was in communication with the parties she could track down to find out where the various
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skeleton arguments were. During the course of Friday morning, my clerk had a telephone
conversation with Mr Grant during which, amongst other things, he suggested to her that she
look up Mr Hendron on the internet because he had apparently been involved in (I quote her
quoting him) “a cocaine-fuelled sex party”. That is something which is somewhat surprising
for a solicitor to inform a judge’s clerk of and it is difficult to understand what the relevance
of it could possibly be.

7 There followed an e-mail sent by Mr Grant to my clerk at 13.31 referring to the case, stating
as follows:

“He is in the good hands of HH Judge Gerald to deal with. If you look up the barrister,
I suggest you do so at home on your home computer or phone.”

The “he” in the first paragraph is self-evidently a reference to Mr Hendron. I infer that the
reason why it is suggested that a home computer or phone should be being used was so that
the judicial and court systems were not used, because, if they reflected that which Mr Grant
had communicated on the telephone to my clerk, that would plainly be inappropriate.

8 The next communication from Mr Grant was at 15.51 on the same day, last Friday, in which
he attached some documentation in relation to a case which, as I understand it, was thought
to be listed before a district judge and, for some reason which I do not quite understand, he
was asking my clerk if she would be kind enough to forward that information. Having made
reference to the attachment, the e-mail continues:

“Have a great weekend and take a look on your own computer or phone at
www.rollonfriday.com/node/98444.”

9 In addition, attached to the e-mail string sent at 13.31 was a ‘without prejudice’
communication from Mr Hendron, who is acting as direct access counsel, to Mr Grant That,
of course, was improper to be communicated to my clerk, or indeed myself, but, as it is, all it
does is reveal, not surprisingly, that there had been some attempt at negotiations. But that is,
quite properly, not suggested to be of any materiality for the purposes of this application to
recuse. So that is the first aspect of the facts which have occurred.

10 The second is that, during the course of Friday, I did a Google search of Mr Hendron. It is
my practice with counsel who have not previously appeared before me, to do a search simply
to look at their chambers’ website just so I understand who they are and such like. That is not
in the slightest bit unusual. For reasons which I cannot now recall, my attention was drawn
to two things on the internet which, firstly, stated that Mr Hendron had been suspended from
practice owing to some criminal matters which were, from recollection, to do with some sort
of cocaine at some sort of party; and, secondly, were to do with taking a photograph or
something at some dinner at Middle Temple in respect of which there were some sort of
ongoing disciplinary proceedings. Those two things are from my recollection and, as I say, I
cannot quite remember how or why my attention got drawn to them. Usually, when searching,
I do not bother to look at any other links or whatever in respect of any barristers which my
attention is drawn to. But, be that as it may, that is what was revealed and, obviously, with
the benefit of hindsight, it would have been better not to go any further than what would be
my usual practice. Either way, that is what the position is.

11 Given, principally, the contents of Mr Grant’s communications and the way in which it might
be thought that they could be construed, I felt obligated to draw that to the attention of counsel
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to see whether or not there were any observations or comments that anybody wished to make.
I did so with all four counsel present, but in the absence of anybody else, and I provided a
copy of the e-mails to counsel. Mr Hendron was given sufficient time to reflect on the matters,
which were obviously of a personal and unfortunate nature, and also to take instructions from
his lay clients as to whether or not his lay clients wished him to apply for me to recuse myself.

12 Having taking instructions and reflected on the matter, he decided, on behalf of his clients
(which, as I say, strictly speaking, is Victus Estates (2) Limited and Mr Agrawal, but for
practical purpose should be treated as being Victus Estates (1) Limited as well) for me to
recuse myself, not on the basis of actual bias but on the basis of apparent bias. The other
counsel properly adopted a neutral stance, save to point out that the information was relating
to Mr Hendron personally rather than to his lay clients and, therefore, there was no reason to
suppose that apparent bias would be engaged in respect of the lay clients. Of course, I
understand those observations, but what must be borne in mind is that it has been well
established that potential animus towards a party or their legal representative is equally a
potential basis for recusal: see Howell v Lees Millais [2007] EWCA 720.

13 The second point which was made, particularly in respect of Miss Benjamin and Miss Munroe
but also with some force in respect of the two lenders, is that if there is any delay it will cause
a huge amount of cost and inconvenience to all of those four parties, not only because the two
ladies (as they have been referred to), Miss Benjamin and Miss Munroe, are perfectly ordinary
members of the public and this has been an extraordinary expense for them to undertake; but,
also, their homes have been in jeopardy for three or four years now, as a result of, they say,
the fraud of their erstwhile partners. Insofar as the banks are concerned, obviously, the interest
will continue racking up during any period of adjournment. But those counsel have properly
recognised that the question of bias is not one of discretion: there either is or there is not bias.

14 The application was made on the basis of apparent bias, the kernel of Mr Hendron’s
application being that the purpose of the e-mails was to undermine his lay clients’ legal
representative and his integrity in the eyes of the court. I will come back to whether or not I
agree with that in a moment.

15 The well-known test is that set out in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, in
which the following test of the Court of Appeal in In Re Medicaments and Related Classes of
Goods No.2 [2001] 1 WLR 700 was approved.

“’85 ...The court must first ascertain all the circumstances which have a bearing on the
suggestion that the judge was biased. It must then ask whether those circumstances
would lead a fair-minded and informed observer to conclude that there was a real
possibility, or a real danger, the two being the same, that the tribunal was biased.’”

16 The authorities have made clear that the fair-minded observer is not unduly sensitive or
suspicious. It has also been made clear that where there are real grounds for doubt as to a lack
of bias, it should be resolved in favour of recusal; and, also, the reasonableness of the
apprehension must be assessed in the light of the oath of office taken by the judges to
administer justice without fear or favour and their ability to carry out that oath by reason of
their training and experience. It must be assumed that they can disabuse their minds of any
irrelevant personal beliefs or predispositions. It has also been made clear that applications for
recusal go to the heart of the administration of justice and must be raised as soon as is
practicable. The reason they go to the heart of the administration of justice is because bias
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strikes at the very heart of the system of the administration of justice. If there is a real
possibility that a party could feel that they have not had a fair trial by reason of judicial bias
or lack of partiality, being unduly influenced or manipulated, that would undermine not only
the integrity of the trial itself, but also the integrity of the judicial system.

17 So the first stage is to look at the circumstances which have a bearing on the suggestion that I
might be biased. I have already referred to those, but, in my judgment, the key question here
is: objectively, what would a fair-minded and informed observer conclude was the reason why
Mr Grant sent the e-mail he did? In my judgment, viewed objectively, there can be only one
conclusion, which is that it was the intention of the solicitor to bring to the attention of the
judge aspects of a party’s legal representative’s behaviour and conduct which were calculated
to undermine the standing, reliability and integrity of that representative in the eyes of the
court such that, putting it rather bluntly, that legal representative should not be relied upon;
or, putting it a different way, anything he said should be approached with the utmost caution.

18 The secondary aspect is of a more personal nature in the sense that the implication I draw
from the comment that “He is in the good hands of HH Judge Gerald to deal with!” gives the
impression that it is a sort of nod-and-a-wink-type situation, where the judge can be trusted to
“see him right”, as it were, though quite why that should be made in this case I have no idea
because I do not know who Mr Grant is and am not aware of having ever met him. But, when
read together, in my judgment, it is a clear attempt to influence the judge into making
decisions which would favour or might be perceived as favouring the client who Mr Grant
represents (Miss Benjamin) and, therefore, disfavour that of the clients who Mr Hendron
represents.

19 I, frankly, can think of absolutely no other reason at all why a solicitor, who, of course, is an
officer of the court, would write the e-mails which I have referred to, or, indeed, have such an
inappropriate conversation with my clerk. All parties should assume that what is said to a
clerk will be communicated to a judge. That is not always the case, but it should still be
assumed. I would go one step further in that, in my judgment, these e-mails are an attempt to
pervert the course of justice by adversely influencing the judge and it is quite improper and
extraordinary for such communications to be had. Indeed, they underline the recent changes
to the Civil Procedure Rules which now require (if it was not already obvious) that all
communications with judges and judges’ clerks be copied in to all parties.

20 The second question is: what did the judge (that is myself) do? I did not specifically search
for Mr Hendron as a result of those e-mails, or, indeed, what had been said to my clerk, but I
did search for Mr Hendron in the way in which I always do and, during the course of that,
came across the material to which I have briefly referred. I did not pay much regard to it
because it seemed to me it was not particularly relevant. It was ill-advised of me to follow
the search, but that is what I did. What I have not done and did not do is follow the rollonfriday
link: I have no idea what that is. But, be that as it may, that is what I did do.

21 The next question is: what is the materiality or significance of Mr Hendron’s past history?
Strictly speaking, it is of no relevance at all to the issues which I have to determine. Not only
are his suspension and present inquiries as a result of the Middle Temple photograph all public
or in the public domain, but they have absolutely nothing to do with this case at all, save in
one respect, and that is that it is, in my judgment, an aspect of fairness that counsel should be
able to freely represent their clients without feeling that one of the other sides’ solicitors is
acting him behind their backs, attempting to undermine and defile his reputation to the court
staff and the judge.

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22 When a barrister or counsellor, or indeed any advocate, is put under that sort of pressure, it is,
in my judgment, a little bit unfair. It would also make that counsel, however robust he or she
is, feel constrained, perhaps, in some respects in making submissions freely and fearlessly and
it also may, I do not know, put a strain on his or her relationship with his or her lay client.
Albeit that those are not directly related to the specific trial process itself, in terms of the judge
making a decision, having heard all the evidence, it is an aspect of it and, indeed, it was the
covert, secretive nature of the communication, which I assume was not intended to be
communicated to the other parties (but, obviously, I was obligated to do), which make it even
worse.

23 I then come to the final question: taking all those factors into account, what would a
fair-minded and informed observer conclude? Would he or she conclude that there is a real
possibility or a danger that the judge was biased? In my judgment, in this case it would be
very difficult for a fair-minded and informed observer not to conclude that there is a real
possibility or danger that the judge is biased. I should make it clear, from my personal
perspective, whatever counsel have or have not been up to their private lives is of absolutely
no materiality to me at all. My only concern is whether or not somebody is entitled to practise
as an advocate. I have absolutely no difficulty at all in putting those sorts of things out of my
mind and they would be of no relevance at all.

24 But that is not the question. The question is: what would a fair-minded and informed observer
conclude? Where a solicitor has nakedly, in my judgment, attempted to undermine one party’s
counsel in the eyes of the court and also covertly put pressure on that counsel (now revealed
because I have revealed it in open court), it would be very unfair for this trial to proceed before
me and it would also be very unfair to put that sort of pressure on Mr Hendron in this trial. I
take a particularly strong view in this case because, as I indicated earlier, it seems to me that
this either actually is or is one step short of attempting to pervert the course of justice and the
minute that is identified and stated, it self-evidently makes it impossible for this particular
trial to continue before me.

25 I, therefore, with considerable reluctance, will recuse myself and have to adjourn the trial.
The reason I am very reluctant about it is because I am very, very well aware that for
Miss Benjamin and Miss Munroe particularly, whatever the rights and wrongs of their case
(which I do not know, obviously), this has been an extremely expensive process for them to
undergo. As far as I am aware, they are not ladies of particularly large means, so this will
cause a huge burden costs-wise on them and also it will cause the strain of litigation to be
extended for a period of time owing to the inevitable adjournment of this trial.

26 This should be a very salutary lesson for all, particularly solicitors communicating with the
court through the informal medium of e-mails and also on the telephone, that they should act
at all times properly and with the utmost integrity and propriety, particularly bearing in mind
that they are officers of the court. The financial and cost consequence of this sort of conduct
is extremely serious, not to mention the waste of court time in having lost a ten-day trial and
now having to find another judge before whom it must be listed to be determined.

27 I, therefore, grant the application for me to recuse myself.

__________

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