A spectacularly Misleading Case – nested in a real one

25 November 2014 by David Hart KC

Islamic Investment Co v. Symphony Gems & Mehta, 19 November 2014, Hamblen J – judgment here

Hamblen J observed that “the facts…are so extraordinary that they could have come from one of A.P. Herbert’s “Misleading Cases”. Yes indeed. A solicitor decided to make up three years of litigation, writing some fake judgments, pretending to instruct barristers, and churning out fictitious correspondence.

Why? It is not clear from the judgment, though one or two clues  are given. 

The fraud surfaced in a long-running dispute between a claimant finance company seeking repayment of a loan, and the first defendant, diamond traders, and the second and third defendant guarantors. The defendants now owe the claimant $14m. The defendants do not want to pay $14m, and have taken every point in resisting the claimant’s attempts to secure its money – so much so that in October 2010 David Steel J decided that the second defendant, Mr Rajesh Mehta go to prison for his refusal to explain where his assets were, by activating a previously suspended committal order.

The current application was Mr Mehta’s application to set aside all adverse court orders. His reasons – my solicitor had acted against me, and was deliberately trying to prejudice me in my affairs in making up all this litigation.

The story emerges from the files of Byrne & Partners LLP, solicitors for Mr Mehta, and “generated” by one Mr Benson, unsurprisingly under investigation by the Solicitors Regulation Authority and the Metropolitan Police.

The made-up litigation ran from October 2010 to December 2013.

At the beginning of this period, Mr Benson went before the (real) court and said he was without instructions from Mr Mehta. The court duly activated the committal order and ordered Mr Mehta’s arrest.

Mr Mehta’s response was to ask Mr Benson to appeal that order. Mr Benson did not do so, but, from the file, just pretended to do so. So, to that end, he “instructed” barrister Lord MacDonald QC who “provided” a note in order to speed up the (imaginary) appeal. When taxed with a lack of progress by Mr Mehta, Mr Benson blamed leading counsel for the delay (even though he never got the papers), and drafted an email complaining about this. There followed (equally imaginary) letters to Mrs Justice Glouster (pity about the spelling), complaints about David Steel J’s conduct of the original committal proceedings, letters to the Civil Appeals Office, draft skeleton arguments by Lord MacDonald QC, and a telephone conference with Mr Mehta, Mr Benson and somebody impersonating Mr Benson’s senior partner – later in the saga someone pretended to be Edward Fitzgerald QC in another telephone conference.

Mr Benson’s ingenuity appears to have known no bounds. He drafted a consent order under which his client had to lodge £25,000 to act as security for his client’s attendance at court, and Mr Mehta paid this. He complained that Sales J in open court sitting in the Commercial Court had given assurances that he would “turn his mind to the issues” – which he didn’t, unsurprisingly because the hearing never happened, and Sales J does not sit in the Commercial Court. All along, Mr Mehta was getting more frantic that his appeal was getting nowhere.

Mr Justice Blair (who is a judge of the Commercial Court), Mr Justice Hutchinson (who has not existed for a good 20 years), and Mrs Justice Proudman (in fact a Chancery judge) then make walk-on appearances in this fictional tour of the Commercial Division. Edward Fitzgerald QC arrives as counsel, except he doesn’t. Mr Justice Teare suspends the committal order, except he doesn’t.

Finally, in February 2012, Mr Benson gets his fictional day in the Court of Appeal, in front of Moore-Bick and Richards LJJ, and Sir David Latham, who remit the case for reconsideration, in 37 plausibly reasoned paragraphs. The judgment is in Westlaw format, with the neutral citation [2012] EWCA Civ 409  But if you click on that, you end up in front of a different Court of Appeal in a case about a holiday caravan park.

As our real judge comments,

Hence by this point Mr Benson had constructed a fiction in which RM was effectively back to square one.

And 16 months had gone by.

But there was more to come, Gloster J now makes another appearance.  The Court of Appeal finalises its order, directing Mr Mehta to pay €3m into court, and surrender his passport. Mr Mehta meets Mr Benson in Brussels and Antwerp to discuss next steps.  And in September 2012 Dobbs J strays from her Queen’s Bench Division, to give a 7 page judgment. Complaints about her lack of response thereafter to imaginary letters. The CA makes fresh orders in January 2013. Popplewell J conducts a hearing in February 2013, and in May 2013 the CA (Jackson, Arden LJJ and Sir Scott Baker) upholds Popplewell J’s order. All made up.

In late 2013, Mr Mehta and another solicitor (Mr Sanghvi) start getting suspicious. They start chasing the transcribers of the “hearing” before Popplewell J. Mr Benson quickly obliges with another of his fictions, but by now Mr Sanghvi is inquiring direct of the Commercial Court and the Court of Appeal, and of counsel supposedly instructed. And so in December 2013 the truth comes out. All lies. Mr Mehta has been strung along, and has been prevented from entering the UK, causing distress to himself, his partner and his children (who live in the UK).

Motive for a solicitor to stymie his client’s appeal? Not money, because in three years of expensive litigation, Byrnes have only apparently received £25,000. There is some evidence of a bitter family feud, and of parties who might have an interest in Mr Mehta failing in all aspects of the English litigation. But, as the judge advises at [105], all this is speculation.

Conclusion

At the moment, like the judge, all we can do is speculate. If of a certain frame of mind, we may admire the brazenness of the fraud and its complexity, but rejoice in the stupid errors, the misspelt names, the judges in the wrong division, and the neutral citation number which leads to an entirely different case. And we will doubtless follow Mr Benson through the various investigations to which he is subject.

But what happened to Mr Mehta in the real litigation, once the fake one had come to an end and he was still stuck with the committal order?

He had to show that Mr Benson had been acting contrary to his interests before the critical order in October 2010. On the facts Hamblen J considered that this was made out, and that this misconduct had affected the outcome of the hearing before David Steel J which activated the committal order. All previous (real) orders remain in place, so some time Mr Mehta will have to give a full account of his assets.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

• There aren’t any!