to be continued
​
BACKGROUND TO THE LITIGATION:
The story starts in 2008 with us trying to buy a site with a ruined house with 40m of river frontage on the Thames at Kingston.This was to be our dream and forever home. Some people have children, we have houses [though we do have at least 3 children, a dog and a cat at last count as well]. Having built one house on Grand Designs and another at Richmond Park we felt that we had one more Grand Design in us in this unique location which embraced both town and country overlooking the Queen’s brood mares at the back and a misty River Thames out front. We are hopelessly far from developers, being so much more interested in the design, up-cycling and building than concentrating square meterage that it is fair to say that we made mistakes in the conveyancing and financing decisions. There is no room for romance in property developing. As it turned out, our nice solicitors made some too. And around the same time [2009] the bank which was supporting us with a loan with so many zeros I now laugh, also made some even bigger mistakes and there was a big financial crash [not I add exclusively because of us] making it impossible for us to get out of the commitment we had made to buy this property easily.
Our nice solicitors were decent people and we really hated having to ask them to pay up for their errors, but they did because they were honest solicitors, and they had professional negligence insurers and that is what the right kind of solicitors and the right kind of professional negligence insurers do.
Of course solicitors cannot be right all of the time. It’s a tough call and there is lots to think about. But when they get it wrong and you are on the line for large sums of money you, as Joe Public, need to be protected. Insurers have to be ready to pay out and not run up hundreds of thousands of pounds arguing about their insured’s peccadillos and certainly not to change their mind and write fraudulent letters to the judge behind your back to frustrate the offer they made to you twenty five days before which is what can happen with the wrong kind of solicitors and the wrong kind of insurers.
ENTER MALIFICENT
The part of the litigation before I found out about the nice solicitors’ error had taken three years out of our life between 2009-12. And that was at least in part down to the incompetence and complacency of a small private law firm. Although we had once upon a time qualified as barristers, that was our first experience of litigation in the property world, which is a cut-throat business and a far cry from the Crown Courts where David had worked as a criminal hack for ten years. In itself those three years were a rollercoaster of a story where big and trustworthy names in the industry behaved appallingly and unlawfully. But in the end, all accepted their failures [of which there were many] - paid up and made up and moved on.
Or so we thought. Like the forgotten fairy at Sleeping Beauty’s christening, the overlooked, small, malevolent, private law firm which we had engaged for three weeks in June 2009 chose to emerge at that very moment. Having missed the same mistake as the first law firm we imagined they would be more than pleased if we didn’t turn round and sue them. But no, having sniffed the settlement, days later their writ dropped through the letter box for the £20,000 which they said they had run up over three weeks of doing nothing we had asked them to. A bit like the Mafia - it was a mistake to say no as the thick spiky-wood began to seed around us.
A solicitor friend from Cambridge days had recommended them from his practice in Bombay.
“Get away from those white-gloved Englishman, Williams” he had said, “you need someone to fight for you. This guy is a street fighter.”
But when we met the said street fighter we did not like his approach. We parted company after three weeks, and took the case ourselves, which, after three traumatic years, we won.
Street fighter is quite special. An independently rich and greedy man with an asian male superiority complex, he did not like being challenged by a woman - an Asian woman at that. Even though his firm had been engaged to look out for mistakes and engaged three partners to look for them [in a firm where there are only 3 partners] his firm had overlooked exactly the same matter as the first firm. He also doesn’t like to be seen. Like an arachnid Charlie, of Angels fame, he stands behind or above all litigation, controlling his minions like a big fat spider with his fingers in each quadrant of the web.
THE ORIGINAL MISTAKE: THE RANSOM STRIP
The original case had been about a ransom strip [a piece of land not included in the sale, usually owned by a third party, which is needed in order to build or access the property]. The strip was easily identified by comparing the planning drawings with the OS Map - I found it but both firms of solicitors [our original conveyancers and Maleficent and Co.] missed it. It’s a sackable offence for a conveyancer. The surveyor in charge of the sale concealed the information from us, as did the estate agents. The surveyor was prosecuted for property misdescription, and the the solicitors and estate agent made an out of court settlement with us. But Maleficent, as we said, has it’s own code of No Shame and is very, very…special.
MISTAKE NO 2 and the COST COURT
By May 2015 the firm suggested its fees and costs had grown from £20,000 to £150,000 with no justification, save that the apparent cost of writing us the odd letter and an aborted hearing, was £130,000. The December 2014 figure had been given to Chris Hough, our sometime solicitor, verbally as “around 40”. Malificent also told him that the matter was personal. So it’s good to know that we are all grown ups here.
The problem is that there is no obligation on a solicitor to provide evidence of their costs to the hapless client once they are in dispute. The only way to force them to justify their cost is in what they call a contested cost hearing. And that in itself is an expensive adversarial hearing [I can expand later] which has a whole separate code of misconduct where you risk having to pay the solicitors inflated costs of the hearing, in addition to your costs, and their costs of the proceedings to date if you lose. Confused? You will be.
In truth, contested cost hearings are an elaborate pretence at accuracy but in fact based on dispiriting guesswork. The better the solicitor is at justifying his time-sheets, the more money he or she will obtain. He or she will pass on their bill to a cost lawyer who will redraft it in more detail, costing more money. The more time taken to make it more accurate, the more expensive become the costs of the costs hearing which you will have to pay if you lose. The Judge will often reduce your bill by 20-40 percent and you might escape paying their costs, but by this time you will have incurred more of your own. If the Judge reduces their costs by 50 percent, or does not even not award costs at all as the [lady] Judge did in this case - when Maleficient challenged something so absurd, the pyrrhic victory he won cost us £20,000 each - she is supposed to report it to the Law Society. The solicitor as the officer of the court is not supposed to lie about his fees and this trust is supposed to be sacred. Doubling costs on the basis the judge will allow half is supposed to be a severe breach of the code of conduct. In fact the solicitors I have encountered use this d’office . The litigant in person who does not live his life billing by six minute time slots, of which the four are spent justifying the two, will be lucky if they get a couple of hundred pounds. Judges hate assessing litigant in person costs and almost always put it off or ignore them.
Part of the problem is that judges have not got a clue what ordinary people earn. Whilst paid a salary commensurate with the PM, at around £150,000, they may well have been paid up to ten times this amount in private practice. They do not flinch when awarding a bill of 2, 3 or 10,000 pounds against you for your opponents’ fees for an afternoon in court even though there is supposed to be a doctrine of proportionality on foot. They are also totally inconsistent. The judge in our case said there should be a maximum budget of £68,000 for a fully-contested 4-day trial in the case. The solicitors got around it with an exception for unforeseen actions and ran up another £200,000.
BACK TO MALIFICENT
Malificent gave David audience in his office in May 2015. It is, and was, only the second time one of us would ever see him. The object was to beg him to break down the figures with a view to making him some kind of offer to settle on his fee claim. This fee claim seemed to have a life of is own. Since then it has been up to 150K and then down to 75K and eventually when it appeared on a bill of costs in the cost court it had been trimmed to a modest [two and a half times the original but not including the £6,990 we had already paid of it] 52K. Eventually, after a two-day hearing, the judge reduced it to 25K, which would have constituted a big ‘lose’ for them. They appealed that and gained another net £300 in the process, but lost us both another 20K as the judge refused to award them any costs for such a technical win. In the end, in the spring of 2018, we paid him £68,000 for those three weeks back in June 2009.
In May 2015, however, all he said to David, airily waving some spreadsheets around was:
“If I win it won’t make me rich, and if I lose my insurers will pay”.
Perhaps it was true that we would not catapult him on to the Forbes list but what was not true is that the insurers would pay for the fees in the event of a win for us, just our costs and damages. When an insurer pays out on a negligence claim it makes the negligent lawyer pay for its own fees. Put another way, they are not entitled to charge fees for negligent work. Additionally complex was the fact that the risk-taking firm had a large excess. Very complicated, and all stuff that we did not know when we made our…second big mistake to sue Maleficent’s firm back . We felt they were out of control and we felt confident that they would have to understand if all of the above players had recognised their tort so eventually would they. Instead they would pin their defence on the fact that they felt we had already been compensated and everyone else was at fault, not them.
Chapter 3
We had a virtually non-existent income at that stage and the strain was deeply felt. Our clever business friend George told us that we needed a steadying hand from a third party, like insurers, to tell them to stop spending money and settle . Even then they evaded telling us who their insurers were, they tricked the law society into backing them and forced us to issue a protective writ. The Law Society would even compensate me the princely sum of £150 to reflect their error. That’s what high stakes we play: £19.99 per day as litigants in person, 150 quid compensation from the Solicitors Regulatory Authority, £250, 000 bills from insurers and solicitors. Eventually the Law Society disclosed the insurers.
That is how XL Catlin and Kennedys became involved. Kennedys LLP was appointed by Laura Wall the loss adjuster, at least in part because she and John Eastlake of Kennedys were “dear friends” and had worked together on many cases. Head of Legal Counsel at XL, Claire Morton used to work at Kennedys. This is possibly why John Eastlake was confident he could achieve a settlement. But the one party whom he had not encountered before was this very special firm….
CLASH OF THE TITANS AND HOW WE GOT TO WHERE WE ARE TODAY
But in this extraordinary case, this special firm even locked into battle with their insurers. Six months later, in May, there had been a mediation but Malificent didn’t even turn up. Nor did XL Catlin [now AXA] and so we were unable to agree a settlement - not with us but between their parties, even though John Eastlake said he had authority to make an agreement. A prerequisite for terms of a mediation that the decision maker is there. A good mediator, I’m told, locks the parties into a room with a plate of sandwiches until they come out with a decision. In October 2016 AXA-XL Catlin, having endured months of argument with their insured, even going as far as a QC -off [paid for by us] - bearing in mind on of the trips to a QC in Fountain Court cost about 14K - AXA_ CATLIN decided to go it alone. Bear in mind we had made an offer to settle with them for £64,000, mainly to pay their own insured client. Fed up with the special firm, the insurers wrote to us on 9 October 2016 made a direct offer to us to settle, which they stated was both independent of the special firm and of Kennedys who, absurdly of course, had been engaged and paid by insurers to handle the settlement of the claim. When Maleficent found out he was clearly very, very angry and on 10 October we received another letter saying that the offer was without any admission as to negligence. I am pretty sure that the insurers didn’t care by that stage and nor did we. The sensible, or at least semi-sensible parties, wanted out. But Maleficent hadn’t dropped hope of his Master Plan working out…
MISTAKE NO 3: HERO TO ZERO
In mid-October 2016, some days later, Clever Clogs here made one of the worst financial decisions of her life. She reminded insurers in a know-it-all sort of way that they had asked for an Order of the Court on 15th September just to make a point. The Order that Judge Baucher made said:
1] that we [Insurers and Devoys] should not communicate directly with each other but only through Kennedys; and
2] that Kennedys and the Devoys should not communicate directly with the Judge.
If I hadn’t done that we would have been able to seal the deal in person with the insurers. Instead we were left with Kennedys acting as a post box and we pretty much never heard from Insurers again.
In this split second of opportunity, this special firm saw a way of frustrating the contract they never wanted to exist, using Kennedys LLP to execute a stunt that made it look like “naked opportunism” but which method was actually FRAUD. Cyber-fraud to be exact. Here is how they did it and we went from gaining Fifty to losing Five Hundred.
Forgive the use of the analogy which follows which has some malodorous language. It might offend non dog-owners and lovers of City solicitors [if there are any of either].
THE STING: THE SOLICITOR, THE PLASTIC BAG AND THE DOG TURD TRICK
[hashtag MAGIC CIRCLE FIRMS - hashtag cyber fraud. Solicitors Tricks]
To put you in the picture, solicitors, QCs and the Regulation Authority [SRA] are terrified of
alleging fraud unless the solicitor has put an entry in the Legal 500 saying “I am recognised by clients for my refreshing approach towards committing cyber-fraud”. They would rather the general public go hang than a solicitor chum be besmirched. Even when the Judge , as in this case, has written a letter saying she doesn’t have any information concerning the application on record, and therefore she does not have the power to act [and the court clerk has corroborated this in writing] in the UK Legal System the Judge seems so in thrall to the concept of the solicitors’ sworn duty to the court that, as in this case, if the solicitors have simply told her a letter has been sent, the Judge can be prepared to make a ruinous judgement without proof of the same. In other words, as solicitors owe a duty to the court, judges essentially give them dispensation to say what they like and will believe it before they believe the great unwashed. Judges believe that as solicitors have more to lose they are less likely to be deceptive. Not so in our experience of litigation. In our experience they have so much more to gain if they win. In the City you are only as good as your last case.
We have mentioned to the Judicial Conduct office that breaches of procedure have been by-passed by the Judge and solicitors having secret correspondence, in contempt of court which is not recorded but which are then used in the judgment. A Mr H***** says that unless the Judge has been directly racist or fallen asleep in court they don’t have any power to act. A judge not checking to see if the evidence is corroborated when everything she has tells her it is not properly served on the court is presiding over a kangaroo court. If there are no rules to follow, why are they even sitting on the Bench? It is hard to understand why we are unable to contact Alistair Burnet, the Lord Chancellor, allegedly responsible for the Judges. Despite sending him a recorded letter with all the evidence copied to Andrew K** the civil servant in charge, we have had nothing.
We are told that acts of racism and lack of concentration are apparently more serious than fraud. But I think the Judge was extremely prejudiced. The first thing she said to me when I got into the witness box was “why are you shifting from side to side ?” [looking guilty]. Then I tried to offer her an explanation given to me by the person who had prepared the file which she then said was hearsay and refused to admit it. Then she allowed the whole case to be run on hearsay evidence she knows wasn’t admissible and kills the case.
Unelected and unregulated - these Judges hold the scales of justice for the general public. The statue on the top of the Royal Courts of Justice is blindfolded and ignorant. One wonders if they have earplugs too.
ANYWAY FINALLY
THE STING: The Plastic Bag Trick, Kennedys and the Dog Turd: a quick visual synopsis. More lawyerly or squeamish folk may wish to skim to the next page for a more legal and evidential approach, although we think these two paragraphs are extremely useful. The objective was to frustrate the contract we had agreed with the insurers on 1 November for them to pay us £10,000 plus all our legal costs for the past three years.
Here is how Kennedys used a judge of the County Court as an e-mule to simultaneously by- pass the rule of law and procedure and contract, as well as breach the Solicitors’ Code of Conduct and be in contempt of court whilst perverting the course of justice and committing fraud. Obviously this is only in our humble opinion as the court has ruled otherwise absent that none of these facts have been put before it.
On 3 November 2016 Llinos Kent dropped a cyber-turd [a backdated attachment] to a secret email sent to the Judge. That faecal matter contaminated the DNA before the Judge who, we hope by accident rather than by design, admitted it into court, by bringing it in somehow on her shoe. Meanwhile Kennedys left it festering as an unidentified smell for six weeks whilst they worked out which card to play next in response to our desperate floundering. They would not locate the smell or clarify the location for us because they were dependent on all of the to-ings and fro-ings of this impulsive and dangerous judge. By 1 December, Llinos Kent decided to craft an internal email, which I believe she probably sent from her trainee assistant’s computer to herself, although it could have been the trainee Serena who did the deed. Either way it was bad. This email [the dirty tissue] was apparently copied to, but not actually sent to, the court, although it was made to look as though it had been. It was not billed for in the Outlook system or marked with the correct Kennedys KEN-LEGAL.FID1976602. ref which I believe means that it would have been sent from the correct case file. Nor did it appear to have an attachment, as it did not carry either the paper clip nor a pdf icon, despite the urgent attachment pdf. being the key evidence in the case [this email cover sheet faked and also backdated to the 25 October] was the thin tissue used to pick up the cyber-turd. Both fakes were then scooped up into a nice branded, sanitised plastic cover [a proper liveried Kennedys application on a N244 court form] which would be dated and served on 1 December 2016. Inside it still stinks. But to the outside world, judges, silks, the SRA, the resultant writ looks good, bills expensively and smells as sweetly as any of Kennedys’ properly-sealed and served documents.
The upshot has been to persuade the judge that Kennedys had successfully bowled us out of the case by hitting the stump, ex post facto [ho] with a breach, before we had got to first base of contractual acceptance. But, of course, I haven’t mentioned the reason they had to go to these lengths. Basically, three days before, the e-turd was bowled, on 1 November, we had accepted a time-limited insurance offer from the Fed-up of Fenchurch Street Insurers. Kennedys needed to show we had been bowled out prior to 1 November, i.e. before we could get to accept the offer in time. In other words Llinos Kent and John Eastlake had to backdate their application to a time before 1
November, otherwise the judge would have had no power to rule and we would have “won”. In fact the other point is that they said they made an application but they never made an application and the letter they sent was just that. A letter. It was entirely misleading and specified no breach.
Even though the offer we were accepting was made by one of Kennedys’ clients, Malificent’s curse struck and Ms Kent released a massive cascade of toys from their pram. The forest of thorns sprang up if you will pardon the mixing of child-like metaphors for it is the stuff of fairytales. Just more Grimm than Disney.
EVIDENTIALLY the giveaway is that no solicitor [Eastlake, Kent or Jobanputra the trainee] from Kennedys has ever dared to swear the email and attachment were ever sent to court. This would be direct perjury. As neither document exists, unsurprisingly the court has never received them. As such the basis of the whole evidence for the application we lost is total hearsay and evidentially worthless. Additionally, the firm in 2019 has gone on to provide what we believe to be false electronic evidence to corroborate their false non-electronic non-application of three years before. Needless to say they don’t match up.
DILEMMA FOR KENNEDYS
But Kennedys, having started the deception before the Judge in November, were faced with the problem of how on earth were they going to bring that letter dated 25 October into evidence in December to achieve their ultimate goal when it hadn’t been properly served.
They could not say they had written to the judge after the offer had been accepted.
Kennedys’ only option was to fake the other half : some kind of application email introducing it into the normal court channels. This is why they kept it secret for six weeks. Had they served it on us we would have wanted to see the bit which validated its entry into court. Also we would have wanted to remedy it by producing the one piece of paper missing and providing a simple witness statement which said there were no more documents. That is all it would have taken for us to win and the irascible and prejudiced judge whom the solicitors “played”, as Harvey Specter would say, would not have been able to affect our lives in such a capricious way. We would have applied for relief or the judgment to be set aside under 3[6]or 3[9] CPR, but such was the judge’s prejudice she didn’t even mention the section under which she had struck us out on the Order of 11 November, 2016. This is not Justice. This is Chaos.
After all, the whole idea of the judge asking for the papers to be delivered on 21 October was not to set an adversarial goal to see if we would stand or fail but was supposed to be an act of co operation to encourage settlement, carrot and stick, the stick being that if we did fail to co-operate we would have our case struck out.
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SO THIS IS WHAT HAPPENED TO THE CYBER TURD NEXT, BUT MORE DETAILED EVIDENCE OF THE MISSING E- TURD [LETTER OF 25 OCTOBER] AND HOW
LLINOS KENT GOT AWAY WITH IT
On 1 December 2016 we received a pdf application [a type of writ - the plastic bag] from a City law firm called Kennedys. It asked a Judge to stop us accepting an offer an insurance company had made to us for a claim we had made against another firm of negligent solicitors. The reason given by the law firm for this bold demand to the Judge was, they claimed, that part of a document was missing [by which I mean one page] from a tiny file of papers that I had delivered by hand, on an appointed day, to their office, six weeks earlier, in strict accordance with our understanding of the Judge’s order. The solicitor had never before December 1, anywhere mentioned that this apparently vital page was missing either to us or the Judge [even in her secret attempt to write to the Judge on 3 November 2016 [or her backdated e-attachment - the bowled cyber-turd]. If she was right,
however, we could be held to have disobeyed the judge’s unless you do something order and our entire case would be dismissed. As this page became the most important document in the case, we feel it’s a little implausible, in 21st and not 16th Century Britain, that in asking the judge to bowl your opponent out ex parte, you would not produce the evidence to her - a bit like Henry VIII saying you had committed adultery but not specifying with whom. Of course, if you were simply playing for time until you could find a case of breach - the scenario becomes a bit more
understandable.
Kennedys swore on oath that this application was the second application they had made to the court in the case, and they attached what they said was the “first” application” [turd and tissue] as the central exhibit to the solicitor’s statement [plastic bag]. Closer inspection reveals a play on language where in the dirty tissue it is referred to as an application and in the copy to the judge it is a letter /request depending on who is speaking. John Eastlake, who lies uneasily, says in his exhibited email that it is a letter. This has no value at all.
For the laundered second application to have any prospect of success at all, it needed to stand on the shoulders of the [first] dirty email application that Ms Kent indicated she had sent to the court on 25 October 2016 because it was the only contemporaneous document that suggested there had been any sort of a failure by us to deliver documents in October.
Without it, there was no credibility at all to their story. Looking at the above bizarre, almost certain abuse of process, Kennedys inexplicably got the Judge to strike out our case 11 days after we had accepted the offer, by pretending it had used an application which they refused to disclose to us until a whole month later, and then only embedded in another application.
In other words, it refused to provide the information it said it had provided to the judge for six whole weeks. The judge, it seemed, was equally intent on concealing the information.There is still a letter on the court record written in response to Mr Hough [my sometime solicitor]’s letter of 1 December 2016 asking where the letter/application was.The response dated on or around 23 January 2017 says the court is looking for the application and will come back to him when they find it.They haven’t and and never will, because no letter or application was ever sent and to this day none exists on the record. The whole exercise between judge and solicitor appears to have been done on the nod.
By displaying a copy of this dirty first application as the central exhibit for the first time in the body of the second laundered application it made it look as if the first application, however vague, had been sent to and validated by the court office on 25 October BY FAX and urgently taken to the Judge before the 1 November, the key date of acceptance of the insurance offer to settle. Instead, it had been emailed to the judge, which is not documented anywhere. I believe that this was entirely deliberate, and Andrew Coates, of the Kennedys ethics committee, who had been asked to produce it, was testing us to know whether we suspected anything as he said something cryptic like “if you have any reason to suspect it isn’t the document let me know.”
Put simply, without the dirty first application it would just look as if Llinos had had six weeks to make up a story that the vital part of the document mentioned in paragraph 1 above [called a
schedule to a Tomlin Order] was missing, by which time it would have been too late.The insurers might have paid out. The judge would have known that case had settled and would no longer have jurisdiction. By showing the first application had been sent to the court on 25 October our case could be dismissed because it seemed she had discovered our failure to deliver the vital document immediately on 21 October. Her conspiratorial air portrayed a friend so appalled that the judge’s instructions hadn’t been followed that she had acted to bring the case to an end, doing the judge’s will by depriving us of being able to pursue our main negligence claim. She did not mention the other part of the judge’s will, which was to encourage settlement. If she had not enraged the judge there is no doubt that HHJ Baucher [who had said on her last hearing she would personally dedicate some of her own wages to making this case settle] would have tried to ensure that this offer really meant the end of the case.
Llinos Kent has made a complete fool of the court and the judge and used her as an e-mule to bring in out-of-time evidence into court which will be seen when we review Ms Kent’s secret correspondence to the judge of the 3 November [below].
In retrospect, of course, it is blindingly obvious that new evidence, namely the identification of the so-called VITAL missing schedule, would not have been introduced for the first time on 1
December, a whole month after we had accepted an offer to settle on 1 November, when Ms Kent has failed to put it evidence that she discovered it was missing by 25 October.
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WHY DID LLINOS KENT NEED TO MAKE THIS FALSE APPLICATION (TURD BOWL) AND THE RULE AGAINST SECRET CORRESPONDENCE: MASTER ROWLEY: RULE 38 CPR
And the danger of being a servant of two masters when they found out we had accepted a Part 36 offer in a case where they were working in conflict between the insurers and insured.
This secret correspondence between Llinos Kent and Her Judge Baucher of 3 November 2016 was in contempt of court, bad practice and her first step in the fraudulent attempt to frustrate our acceptance of a contractual offer made by insurers to settle our claim.
It was a deliberate attempt to keep us from open justice, contrary to CPR39, and there cannot be any way that it was in the public interest for this decision to be made away form us. The only reason would be so we could not defend ourselves.
It is clear from what has emerged that London lawyers have for a long time run around to get judges to make them grant secret orders ex parte and this has clearly prejudiced us. Chris Hough, who would no doubt agree, is considered a country bumpkin in comparison to these slick wheels (no offence to Chris, who is eminent in his field). Mr Hough’s letter of 8 November 2016, sent to the proper office, on the file, and copied to Kennedys, was somehow not read by the judge until after the doctored emails of Kennedys on 2 and 3 November, which they chose to fast track to her directly in contempt of court so they jumped the court office queue. His letter, properly read, would have likely concluded the case in our favour. It would have closed off the possibility of the judge not knowing about the Part 36 offer OR made it a necessity for the judge to have both parties before her to make representations prior to making a decision. It is also bizarre that the judge did not order that the letter of 25 October should be disclosed to us or Mr Hough, having used it in her judgment, so we could make representations rather than writing blind as we had to. This is worrying and still more worrying that the Lord Chancellor or JCIO does not seem to care. This is on the record and reported law which other people will rely on in the English common law system of precedent.
CPR 39 was passed in April last year in order to stop solicitors making secret correspondence with judges. This was notified to me by a Master Rowley this summer who made us feel quite sickened when he said that WE had a habit of writing to judges when we had learned the ‘correct’ method from Kennedys, who appear to have won a quarter of a million pounds by doing it with Her Judge Baucher. To be clear, we knew there was an email dated 2 November 2016 from Llinos to the judge by this time but did not realise the attachments were faked.
Master Rowley pointed out the new Rule and this was what made us realise Llinos Kent approaching the judge secretly was odd, particularly as she was in contempt of the judge’s Order at the time. Adding insult to injury, Master Rowley said that he wasn’t allowing the appeal because I hadn’t copied in the lawyers (simply to say I wanted to appeal and not to adduce fraudulent papers) and left me with a cost of £8,000. But he did alert me to the fact that Kennedys’ actions had been wrong, which led me to find out what they had done. The first telephone call I made to the court, they told me that there was no application or official communication or letter on the electronic
record made by Kennedys between 15 September - 1 December 2016. Then I made an appointment to look at the hard file, the judge’s file and the Ministry of Justice record. I also asked Kennedys to produce the original application, and they could not as it didn’t exist.
It transpires then that back in November 2016, faced with the wrath of her client, in an act of
arrogance and deceit, Llinos Kent had decided to create back-dated attachments to 25 October and send them to the judge pretending to have already sent them to the court office 9 days before. She signed the attachments on oath in a statement of truth. This is a deliberate contempt of court under s. 32 of the CPR, punishable, as I understand it, by prison. She decided to use the judge as an e- mule to introduce evidence under the wire.
In our case, she went on to lie on oath in a further three witness statements and attempted to conceal a witness, and the judge protected her from her lies being exposed through cross-examination.
Admittedly most of the above lies were not known, and none of the barristers, including top but complacent QC Jonathan Marks even noticed her clever dirty tissue hearsay wrap. Her enormous lie concerning not having a photocopier in her office reception and not having a secretary who was capable of photocopying the sheet found to be missing, revealed but never explained, was a classic case of her changing her story and us continuing to be found as right but the judge believing Ms Kent.
Perhaps the judge is implicated as this was merely commented on as “unfortunate” . Whichever way you cut it, the judge is also responsible for this deception (like it or not) but there is no one to oversee her.
In sum: Kennedys did nothing in October. Certainly Kennedys Serena Jobanputra did not write to the court with an application on the 25 October to strike us out. There is no
application. The evidence of the first application is hearsay and therefore the second shouldn’t stand, in my view, but I am not a lawyer. The whole of the application one cyberturd and ewrapper attached to the plastic bag application, is complete hearsay. The judge has not told the plain truth in her judgement of 24 January 2018, when she said that the defendants wrote on 25 October 2016, as she has no evidence of that at all anywhere, not even a post mark.
We have evidence proving this from:
1] The court Caseman (electronic register);
2]The court hard file;
3] The judge ’s OWN correspondence;
4]The Delivery Manager at court’s correspondence;
5] Letters from Chris Hough and the response from Maria Prentice of the County Court office;
6] Forensic email meta data;
7] The Ministry of Justice; and
8] The court manager.
So how did Llinos Kent persuade the judge to rule in her favour?
Why are we not allowed to know what steps were taken on 11 November 2016?
Case totally in contravention to OPEN ACCESS TO JUSTICE.
As mentioned, in order to bowl us out, Llinos Kent had to make it seem that she had served an application to the court and let the judge know of our purported breach before 1 November by getting to the judge before the judge learned we had already accepted the Part 36 offer. This was taking full advantage of litigants in person.
Wrong-footed by our acceptance of the offer, Ms Kent was in a difficult position. She couldn’t risk reporting that a document was missing which which we could prove we had served by email. So she wrote a bland cyber-turd which kept her foot in the door to play for time whilst cleverly misleading anyone who read it into making it look as if we hadn’t served any papers at all.
In her brilliant drafting, which can be seen in her email to the judge in full below, Ms Kent tried to persuade the judge, through cronyism, that we were wicked people who did not listen to her Orders and so she should make a secret Order striking out our case because we hadn’t supplied the/any correct documents in accordance with the Unless Order the judge had made.
If she had told the judge the truth, namely that she was writing to her in secret, there was a Part 36 offer which had been accepted, and that we did appear to have sent all of the documentation albeit with one notable page missing, Her Judge Baucher would have sent her packing as this would have been absolutely not in the overriding objective.
THE TWO LETTERS: LLINOS TO JUDGE AND JOHN EASTLAKE TO US
I am going to quote two letters here in reverse chronology and then a timeline of what happened between 1 and 11 November. Llinos Kent’s letter to the judge second, but first an email which was written to us on 8 November by John Eastlake, the Partner Solicitor, now at Clyde and Co. in Bristol, who was clearly in on the deception. He told us that the judge had been written to, but appears to have been more than economical with the truth when he said that the judge had a letter which identified the deficiencies. The only thing which was true was the fact that they would not provide us with a copy and we in fact never got a copy as it didn’t
exist. What they did disclose wasn’t until 6 weeks later and was not a copy of what was sent to the judge, and in contravention of the rules of service. This is entirely unethical and if the SRA allow this kind of bullying and fraud then this is carte blanche for solicitors.
*************
He wrote to us on the 8 November, 2o16 to say as follows:
From: John Eastlake <John.Eastlake@kennedyslaw.com>
Date: 8 November 2016 13:56:05 GMT
To: anjana <anjana@curvedhouse.com>, Llinos Kent <Llinos.Kent@kennedyslaw.com>
Subject: RE: Sorry this hadn't sent. Thursday 3 November, 2016
Anjana in response –
1. The letter was sent and is now in the hands of HHJ Boucher. We will not be providing you with a copy;
2. We have identified to the Judge the deficiencies;
3. There is no order – the wording of the order made by HHJ Boucher makes it clear that the claim is dismissed in the event that there is non-compliance in relation to the provision of identified documentation.
I do not propose to correspond further in relation to this.
John
John Eastlake
Partner
for Kennedys
Kennedys
T +44 20 7667 9095
M +44 7834 079 378
F +44 20 7667 9777
The JUDGE did not have any letter as:
1] Her Judge Baucher had specifically said that she did not have a letter and would not accept the communication unless it came to her in the normal way because she had made an Order of the court to that effect;
2] Their email, which they sent, did not specify the breaches but would mislead the judge into thinking we had supplied nothing. However, she specifically tells us in correspondence as late as 11 November 2016 that she has not read that email;
3] It is of grave concern to us that we have been struck out of court with no evidence at all, and that a letter never served has been somehow enshrined in the judgment when we know it is false. The Solicitors must have been very deceitful to make the judge change her mind if she says she did not have an application as late as 12pm on the 11th. We are not privy to what was said and this is not justice at all but a massive deviation from procedure.
4] Kennedys asked the judge to breach her own Order of court to make a secret Order in their favour.
THE LLINOS EMAIL OF 2 NOVEMBER TO THE JUDGE, IN FULL, WITH
COMMENTS:
Llinos writes on 2 November 2016 at 17.30 QUOTING KEN-LEGAL.FID1976602. [reference missing on the faked email]. Comments in bold italics.
Dear Judge,
PARAGRAPH 1
Apologies for writing to you directly -
in direct contravention of her court order
but we are having difficulties in obtaining an update
No communication with the court office is recorded as being made or nothing exists on the court file in respect of a follow up call from Kennedys. Of course, if they had genuinely sent it and there had been a mistake, the correct thing to do would have been to take a copy to the court.
Filing a copy was a necessity as the so-called letter contained a statement of truth which Llinos (as a brilliant procedural lawyer) would have known full well in accordance with the Practice Direction 5 a and 5b on service of electronic communication.
….in respect of our recent request to strike out the Claimant’s claim pursuant to the Rule 3.5[2] of the…
[referred to as a request rather than the urgent application to strike out - this is not the same document]. If an application had been properly made it would have been on the court electronic register on an N244
…CPR copy attached for your information.
No copy as far as we can see.
…Although the attached request refers to it having been sent by fax it was in fact sent by email on 25:10:2016.
It could not be sent by fax as the CLCC does not have a fax machine. This email is nowhere on the court record and was never sent [see forensics]. However, writing By fax to HHJ Gaucher would make it seem as though it had been sent to her immediately and directly and arrived on the 25th.
Llinos says “it was in fact sent” in the passive which she uses when she is lying so someone does not have to say they did it, as neither she nor Serena did sent it.
as the fax machines were not working.
If they CLCC had even possessed a fax machine it would have been working but they haven’t had one since 2014 (see the letter from the court delivery manager, Sam Friend, to the judge on 11 November 2016. Looking at Kennedys’ files in general it is an excuse they regularly use for late filing: see service of 17 June, for example.
This is thoroughly disingenuous as she does not mention she is writing in the full knowledge that we have accepted a Part 36 offer.
PARAGRAPH 2
As you will see from the attached request, we are of the view…
Based on what?
…that the Claimants have failed to comply with the Unless Order dated 14 September 2016 [copy attached] and as such their claim is now struck out.
Llinos asks the judge to breach her own order and not allow us the opportunity to make
representations.
…However, it would be helpful, given the nature of the Claimants involved, if we could revert to them with an Order confirming the same before we notify them of the position.
Llinos is here leaning on the judge and ‘the Old Girls Club’ to say, effectively, that we are not worthy recipients of procedure and justice.
…I would therefore be grateful if you would confirm whether you have considered the request for strike and whether this has been agreed.
[with whom?]
This is disingenuous as, by omission, she knows the judge has not seen the request because they did not sent it, and if they had sent it of course there would now be a record of it.
It would also be helpful if your clerk could confirm when we can expect to receive the Order, assuming you agree that the claim is struck out and judgement should be entered in favour of our client.
In the event, the judge’s clerk read the solicitors an Order on 11 November at around 2:20 pm.We did not learn of her Order until 21 November. This cannot be anything other than two tier
justice.
If you require any further information , please do not hesitate to contact me.
Kind regards,
Llinos
(First name terms, suggesting perhaps that Llinos knew the judge well personally. She signed her letter Llinos as if there were only one. There almost certainly is.)
Llinos was clearly confident of the fact that the judge was somehow ‘in her pocket’ and the SRA is terrified to lay into a solicitor unless either Mrs Miggins down the road has been ripped off or it is a large corporate fraud.
HERE IS THE TIMELINE OF WHAT ACTUALLY HAPPENED AFTER THE OFFER WAS ACCEPTED ON 1 NOVEMBER:
TIME LINE:
1 November 2016: the Devoys accept a Part 36 offer which insurers have made to them independently of the two firms of solicitors. The Devoys inform insurers of their acceptance at around 5 pm, then the solicitors by email. The Devoys do not inform the court, believing a contractual acceptance will be honoured by a the insurance firm which offered it.
2 November 2016: at 5.30pm (so 3 November for court purposes) Llinos Kent writes in secret to the judge on her private email, in contempt of court, to tell her we had not complied with her “unless
order” of 15 September. She has carefully planted a back-dated attachment which has not been sent to, or received by, the court on the email and asks the judge to read it, stating she was having
“difficulties” in following it up.
!!!!!!! FORMAT
-
She invites the judge to look at the contents of her attachments (which are cunningly back-dated to the 25 October) and which she says have been submitted to the court;
-
-
She says “although the attached request refers to it having been sent by fax it was in fact sent by email on the 25:10:16”. Significant as it was not sent at all;
-
If that were true obviously the carrier email with the pdf attachment would be forwarded - it isn’t and is a totally un-authenticated document;
-
CLCC has not had a fax machine since 2014 - a point which the court staff make to the judge on 11 November.
!!!!!!!!
2 November 2016: no response to the Devoys or Mr Hough, solicitor, in their requests to have their
acceptance validated.
3 November 2016: still no response to the Devoys or Mr Hough, solicitor, in their requests to have their acceptance validated.
3 November 2016: the judge writes back to Llinos, also from her private email, to say she will not
accept or read any application sent to her on her private email and she would only deal with it if it came through the normal channels. The Devoys are not copied in on any of the secret correspondence.
SEE: LINDA TOPPING CASE!
Despite repeated requests to the Managing Partner and ethics committee at Kennedys, the email letter and its attachments are never disclosed to us.
4 November 2016: Kennedys are in trouble. The judge has unexpectedly not complied with their wishes and they cannot simply “revert to [the Devoys] with an Order…. Before we notify them of the position” as they had hoped when they approached her. They could not disclose the letter as the judge had not accepted it. They bluff. In the real world this is called a lie. They are forced into a cleft stick and decide even though they haven’t got an Order that they will brazen it out and tell us the case is over.
4 November 2016: Llinos Kent writes to the Devoys to tell them the case is over and the case struck out under CPR 3[5]. No reasons are given.
8 November 2016: John Eastlake writes the email exhibited below. He lies and says the judge has a letter which tells her the case is over. On 11 November the judge writes to say she has no such letter.
8 November 2016: Chris Hough, solicitor, simultaneously writes to the court to try to contact the judge to ask for the Order and to explain we had complied with the Unless Order and we had accepted the Part 36 offer. We are all distraught and baffled at this Kafka-esque
situation.
11 November 2016: the judge approaches her court delivery manager, Sam Friend, before lunch to say that although the ‘sols’ are asking her for resolution she has not got the
application and has told them it MUST come through the normal channels.
“Dear Sam,
This is a difficult case where I have refused to enter into email correspondence with the
litigants in person and so I had to reply to the sols last week saying the same. I said it would have to wait for the application to be brought to me through the usual channels. Trouble is I am still waiting for it. Can you find it please. I have the file. H. “
The response is:
“ Dear Judge,
Having looked on Caseman there has been no application logged on for late October. The last application made in this case was made in September which was listed and has been heard”.
Ms Friend goes on to say she will approach solicitors to see where it is and what they have paid but no copy is placed on file or note made.
This is not open access to justice. I asked Ms Friend on 21 October 2019 if she had a note of what she found and she did not.
11 November 2016: after lunch, at 2pm, the judge’s clerk rang Kennedys and read out HHJ Baucher’s Order to them.
At some unspecified time it was put in the second class post to us and we received it on 20
November. Again, this is two tier justice.
14 November 2016: Anjana Devoy writes to the judge from her hospital bed as she is worried sick about what is happening and the Devoys and Mr Hough feel they are being sidelined.
14-23 November 2016: the judge embarks on a series of inexplicable actions which she later denies are formal.
1 December 2016: Kennedys Solicitors make a double false application to set aside the judge’s second Order.
LEOPARDS DON’T CHANGE THEIR SPOTS: MAGIC CIRCLE BAG OF TRICKS:
FAST FORWARD TO OCTOBER 2019
The top City law firms are not called the ‘Magic Circle’ for nothing… Even though Kennedys is a step down from the actual Magic Circle, it is has annual growth of 8 percent and a £200 million turnover. Think about it; we were responsible for around 0.1 percent of that turnover last year.
Considering we were just trying to get enough to settle a claim of £20,000, surely in any book this is extortion of a family.
Of course we could be wrong - but if so why, when asked to produce the the original documents exhibited in the application of 1 December 2016 or witness statements verifying them, has Kennedys LLP not been able to produce them? Far from providing an explanation, they have gone on to give unconvincing, embarrassing and frankly insulting fake emails which seek deliberately to muddy the meta data. In this litigation we explained our story and have stuck to it. It has not come unstuck and is entirely consistent with correct procedure and honest delivery. It was their story to prove and yet somehow the burden of proof made us prove that we did deliver the document. We were naive and just having lawyers to say we did comply, which is the sum total of Jonathan Marks QC’s defence on our behalf, isn’t enough against lawyers like this.
Kennedys and the judge, however, have both flip-flopped, altered their story at least three times on oath (re. the application delivered on time to the judge, the papers delivered to them and not photocopied there, the receptionist suddenly being discovered and who corroborated our story, and the eleventh hour allegation that we took the papers to the office but removed them at the last minute).
Despite this, the English Legal System prefers to leave control of your life in the hands of a
capricious and erratic judge, who, in her generous ambit, protects the solicitor and hangs you
(litigant in person) out to dry.
================= edit
WHAT ACTUALLY HAPPENED WHEN WE WROTE TO KENNEDYS AND CLYDE AND CO?
In October 2019 we wrote to Matt Deaville, the Partner at Kennedys who has replaced John Eastlake, and to the trainee, Serena Jobanputra, and asked them for their confirmation that the dirty
tissue wrap to court [the cover email in her name and, by implication, any attachment named
Urgent pdf to strike out] existed. Matt Deauville first of all rubbished any request. Serena did not respond, even though she is a grown up who has apparently served the only piece of evidence in the whole case. For all we know she may be a figment of someone’s imagination.
Clyde and Co. have said any responsibility for John Eastlake lies with Kennedys, and Kennedys appear to be suggesting the reverse. When we wrote to them, Kennedys’ first response to the new information was to blank us, saying that this had been discussed in court when in fact all of this is new having been discovered only in October 2019. [See also, below, Kennedys’ Classic Dummy responses in the paragraph discussing Solicitors carte blanche in court].
FORENSIC ANALYSIS OF ELECTRONIC DATA: OCTOBER 2019
Matt diverted us to Alexandra Denyer, now compliance officer at Kennedys, to provide the original “tissue wrap” electronically which, if it was genuine, would have been very easy to provide. She initially said she didn’t need to provide anything in response to the pre-protocol letter we served against the trainee [see below for explanation of a pre-protocol letter]. She provided what we now understand to be a [doctored] generic transmission slip purporting to show something had been sent to the Central London County Court dated 25 October 2016 and said to be timed at 11.23.
CLCC does not have anything official on the court Electronic Register (Caseman) from Kennedys between 15 September and 1 December 2016, still less a proper application or even a cover sheet at 11.23 and we have checked this with the judge’s records and the delivery manager’s records as well as the Ministry of Justice. This is strange considering this was the principal evidence from a top London firm.
Ms Denyer entered into a few of the Kennedys’ Dummy Responses.
We don’t know if we have missed anything, but in our litigants in person world a transmission slip proves nothing, particularly without the accompanying document that was apparently transmitted. If you today were to send an email to Enquiries at Central London email, enquiries.centrallondon.countycourt@justice.gov.uk. it automatically sends you a transmission notice back. If you hit forward on the email, names and dates can easily be substituted, although the result does not then
contain the encryptions from the court (which presumably Kennedys did not realise). At this point Kennedys had also not remembered that the court server address had changed between 2016 and 2019 and made several other mistakes with respect to the forgery.
Go to here: forensics to be continued… talks to lawyers first before disclosure
TO CONCLUDE:
It is important to understand that the application of 1 December 2016 was said to be the [second] application in the case and entirely dependent upon a previous [first] email application which Ms Kent has sworn on oath was sent to the court on 25 October 2016, supposedly by a trainee solicitor called Serena Jobanputra. The so-called first email application is reproduced as the central exhibit in the [so-called second] 1 December application, complete with a copy of a faked email from Serena to the court copied to Llinos and printed (it seems) from Llinos’ computer. Without a witness statement from Serena this is hearsay and of no evidential value - but without looking for fraud first time round, this makes it look as though the whole lot has gone through the proper procedure filed at the court office, but it hasn’t, which is actually obvious from the fact it isn’t stamped by the court office as it ought to be. The court has never received any email from Serena. That fact is 100 percent clear and it would have been her duty to follow that up.
Thus the original “first email application” has never been produced. This is because it doesn’t
exist. It is why Andrew Coates of Kennedys’ ethics committee was not able to produce the original email application when asked. We have only ever seen it electronically attached to the [second]
1 December application and when we asked to see it in November 2016, during the procedure itself, we were simply told by John Eastlake on the 8 November 2016 that the judge had a letter and we weren’t allowed to see it. This was unethical, ruthless and again untrue.
There are so many things wrong with the admissibility of RZH’s witness statement (Llinos Kent’s alias) in the 1 December application that it would take an attentive senior counsel several pages to discuss. I’m no expert but Llinos Kent is and would know very well that information sworn on oath has to be from your own knowledge and belief. Llinos Kent would know that in the format the
Serena email cover sheet is exhibited it is hearsay and, consequently and deliberately, neither she nor Serena confirm that the letter and draft order exhibited in the witness statement were actually exhibited and attached to Serena’s email cover sheet in 3 pdfs - because that would amount to
perjury. In the application in the court bundle, the cover sheet does not even have an attachment. Having insisted they send me a copy of the original they insult me by sending a copy with an attachment and a pdf and think I won’t notice the difference.
A truthful statement would say something around paragraph 13 such as “I discovered paper x was missing and drafted the following application which I asked my trainee Serena to send to court and Serena’s exhibit is attached with a short witness statement at page x verifying the truth of the contents”. Of course, she did not do this because it was not sent.
It is also notable also to see that there appears to be absolutely no evidence of Miss Jobanputra billing for sending this fundamental document. In our experience solicitors always bill as it is automatic through the Outlook system as soon as the email is sent.
We believe that there can be no doubt that there was no first application. We have evidence:
1] from the Judge;
2] from the Court Delivery Manager;
3] from the Ministry of Justice;
4] from the court electronic register which logs all applications - that no applications were made by Kennedys between 15 September and 1 December 2016;
5] Indeed there is no communication at all by Kennedys on either the electronic file or the hard copy file during that time save for a secret correspondence with the judge on 3 November 2016. This will be discussed later.