5 January 2023
SCCO judges have power to issue limited civil restraint orders
A costs judge has refused an application to recuse himself after rejecting a solicitor’s accusations of bias in a bill dispute with a former client.
Costs Judge Leonard said Naim Lone was trying to undo a six-year assessment process and found no basis for the multiple accusations.
But, having discovered he had the power to make a limited civil restraint order, the judge declined to do so on the basis that it would achieve nothing “other than embarrassing and humiliating” Mr Lone.
In Lone v Petrou  EWHC 3283 (SCCO), the underlying £134,000 bill for acting on Michael Petrou’s divorce was delivered by Mr Lone, who practises through AL Law & Associates, in July 2016. It was assessed by the judge the following year. The proceedings were extended to assess Mr Petrou’s costs of Mr Lone’s application for permission to appeal, which was rejected with costs by Mr Justice Williams in 2019.
Judge Leonard said: “The recusal application is based upon the proposition that the decisions I have made in the course of these proceedings have, individually or cumulatively, produced such a perverse outcome as to create a reasonable concern that my decisions have (whether by bribery or through the influence of an unnamed party) been biased in favour of the defendant.”
Mr Lone, acting for himself, also applied for a stay on the only issue left in the proceedings – the award and summary assessment of the costs of an abortive hearing last August. “The basis of the application is that I should not be involved in any further proceedings until the Ministry of Justice (MoJ) has conducted an investigation into my conduct in these proceedings from June 2017,” the judge said.
The claimant’s bill was eventually agreed at £104,000 and, applying the ‘one-fifth rule’, Judge Leonard awarded Mr Petrou £21,285 for the costs of the assessment.
After Williams J refused permission to appeal, the defendant sought assessment of his bill for that. These were provisionally assessed by an SCCO costs officer at £27,363 and Mr Lone sought a hearing, at which point he sought the judge’s recusal.
Judge Leonard said: “It says a great deal about the claimant’s case… that he relies, in respect of the hearings of June and July 2017, upon arguments that were dismissed by Williams J in December 2019 as hopeless.
“No fair-minded and informed observer would conclude that I might have been biased because I deducted from the claimant’s bill sums that he had actually conceded, or because I did not make decisions which I was not asked to make, or because I encouraged the parties to enter into a binding settlement from which the claimant subsequently attempted unsuccessfully to escape.”
Describing Mr Lone’s submissions as “frequently prolix, rambling, vague, unclear and repetitive”, he boiled them down to 18 specific objections in five “overlapping” categories: “complaints that are illogical even on their own terms; complaints about purported decisions I was not called upon to make; complaints based on hopeless legal argument; complaints based on inaccurate factual assertions; and complaints about decisions I did make, but which were (whether right or wrong) wholly unremarkable”.
He went through and dismissed all the objections. For example, “I am at a loss to understand how encouraging parties to litigation to reach a negotiated settlement could be cited as an indication of bias on the part of the judge”.
On the discrepancies between the costs schedule and detailed bill, the judge said these were “undesirable but commonplace, and the correct course is usually (in my view) to consider whether the detailed bill, on its own merits, stands up to scrutiny or not”.
He continued: “A relatively minor discrepancy between a detailed bill and a costs schedule, as in this case, gives no real ground for challenging a solicitor’s certificate. That has consistently been my approach, and I believe the approach of other costs judges: it cannot give rise to any reasonable suspicion of bias.”
Aside from failing on the question of bias, the “fatal obstacle” to Mr Lone’s application for a stay pending an investigation by the MoJ was that “the MoJ is not responsible for judicial decisions and has no jurisdiction to undertake any investigation into them”.
“Complaints about the behaviour of a judge can be made to the Judicial Conduct Investigations Office (JCIO), but the JCIO cannot accept complaints about a judge’s decision or the way a judge has managed a case. The only way to challenge such decisions is by appeal.”
Judge Leonard said: “In short, the claimant seems to harbour the belief that by raising allegations of bias and demanding an investigation by the MoJ into judicial decisions, he can somehow reverse the outcome of the entire six-year assessment process; escape binding agreements entered into by him; reverse concessions made by him; and revive a hopeless appeal for which permission was refused four years ago. He cannot do any of those things. The notion that he can is pure fantasy.”
The defendant asked for a civil restraint order because of Mr Lone’s “vexatious” conduct of the matter. The judge said his research had shown he had “some limited jurisdiction” to issue one under CPR 23.12.
This provides that, if the court dismisses an application and it considers that application to be totally without merit, the court’s order must record that fact, and the court must at the same time consider whether it is appropriate to make a civil restraint order.
Practice direction 3C provides that a limited civil restraint order (preventing the claimant from making any further applications in the proceedings without the permission of a named judge) may be made by a judge of any court where a party has made two or more applications which are totally without merit.
“I have no doubt that both of the claimant’s applications for recusal and for a stay are totally without merit, and that I have a duty to certify that fact in my order dismissing the applications. The former is based upon a litany of imaginary wrongs, and the latter upon an investigation procedure that does not exist.
“It is also fair to say that the claimant’s conduct in these proceedings is frequently and regularly vexatious.” This included frequent emails to the court in which Mr Lone failed to copy in the defendant, baseless accusations of dishonesty against the defendant and the judge, while his “treatment of the defendant’s representatives can go beyond discourtesy and descends into abuse”.
Judge Leonard noted: “At the hearing on 20 October he assured me that as a solicitor and an officer of the court he would never make allegations of serious misconduct without adequate grounds, but plainly he does.”
But he concluded: “I do not, nonetheless, think it appropriate for me to make a limited civil restraint order against the claimant, at least at this time. That is first because I am not sure that it would be entirely fair to the claimant when the two applications upon which the order would be based have been made at the same time, and second because the proceedings before me are almost over…
“I cannot see that a adding a limited civil restraint order would achieve anything other than embarrassing and humiliating the claimant, and I decline to make such an order.”
Naim Lone in person. VA Orphanou (instructed by RSO Solicitors) for the defendant.