Gray v Boreh

Factual and Procedural Background

This opinion concerns an application for permission to appeal by a non-party, the Applicant, against findings of fact made by Judge Flaux in a Commercial Court action. The Defendant had successfully applied to set aside a freezing order granted against him, and for a wasted costs order against Company A, the legal representatives of the Claimants. The Applicant, a partner at Company A at the material time, was implicated in allegations that the Claimants had dishonestly misled the court through him in connection with the freezing order application.

The Applicant was not originally a party to the set aside proceedings and no relief was sought against him personally. He provided factual evidence on behalf of the Claimants and later Company A. The Defendant sought an order for the Applicant's cross-examination, which was granted under CPR rule 32.7, and the Applicant was called to give evidence by the court as an officer of the court.

The Applicant was formally joined to the proceedings only after the judgment was handed down and for the limited purpose of applying for permission to appeal. The issues for the appeal application were whether the court had jurisdiction to hear the appeal and, if so, whether permission to appeal should be granted.

Procedurally, the freezing order was originally granted on 11 September 2013. The Applicant swore the principal affidavits supporting that application. In a judgment dated 13 November 2014, Judge Flaux found that the court had been misled in the freezing order application. The Defendant applied on 9 January 2015 to set aside the freezing order on grounds of deliberate or reckless misleading by the Claimants and their legal representatives, supported by affidavits alleging dishonesty by the Applicant.

Due to the seriousness of the allegations, the Applicant instructed separate counsel and served further affidavits acknowledging serious errors of judgment but denying dishonesty. The hearing of the set aside application took place over five days in March 2015, conducted on a fully robed basis. Judge Flaux applied the legal test for dishonesty from Bryant v Law Society, assessing whether the Applicant acted dishonestly by ordinary standards and was aware of that dishonesty.

On 23 March 2015, Judge Flaux found that the Applicant had deliberately and dishonestly misled the court in the freezing order application and had sought to cover this up. The freezing order was set aside as a result. The order did not include any declaration against the Applicant personally, nor did it seek to set aside any provisions directed at him. The Applicant sought to appeal the findings of dishonesty alone.

Subsequently, costs orders were made against the Claimants and Company A, including wasted costs relating to the Applicant’s misleading evidence. The Applicant was joined as a respondent for the purpose of applying for permission to appeal. Neither the Claimants nor Company A sought permission to appeal.

Permission to appeal was initially refused by Judge Flaux on grounds of jurisdictional doubt and the absence of a real prospect of success. The application was adjourned to an oral hearing by the Court of Appeal, which expressed similar jurisdictional doubts and requested submissions.

The Applicant challenged the findings of dishonesty, alleging procedural unfairness and that the judge was plainly wrong on factual conclusions. The central legal question was whether a non-party could appeal findings of dishonesty made against him without challenging any operative order.

The substantive action concluded in December 2015 with a judgment dismissing the Claimants' claims against the Defendant. The Claimants’ permission to appeal was refused. The Applicant was dismissed from Company A and is subject to disciplinary investigation by the Solicitors Regulation Authority (SRA). Related disciplinary proceedings against counsel for the Claimants were dismissed.

The court delayed judgment pending a decision in a related case concerning jurisdiction to appeal by non-parties.

Legal Issues Presented

1. Does this court have jurisdiction to entertain an appeal by a non-party against findings of dishonesty made against him in related proceedings?
2. If jurisdiction exists, should permission to appeal be granted to the non-party?

Arguments of the Parties

Applicant's Arguments

• The decision in the related case (Re W (a child)) establishes that the court has jurisdiction to hear the appeal based on Article 8 of the European Convention on Human Rights (ECHR), as the findings are a "judicial act" capable of being unlawful under the Human Rights Act 1998.
• The procedural unfairness alleged by the Applicant engages Article 8 rights and justifies an appeal to correct the effect of unfairness.
• The consequences of the findings for the Applicant’s professional life and reputation are severe and justify appellate review.
• Alternatively, the court has discretion to amend the order below to include a declaration against the Applicant, enabling appeal.
• The appeal grounds include procedural unfairness and substantive errors of fact and law with a realistic prospect of success.

Defendant's Arguments

• The court has jurisdiction to entertain only the procedural grounds of appeal but not the substantive grounds challenging the judge’s factual findings.
• Article 8 provides procedural safeguards but does not guarantee a right of appeal against the substantive outcome of a fair process.
• The court did not act unlawfully by reaching a potentially incorrect factual conclusion; thus, substantive appeal grounds lack jurisdiction and merit.
• The Applicant has no personal or proprietary interest in the freezing order outcome and is not a party entitled to appeal.
• Permission to appeal should be refused as a matter of discretion due to lack of real interest, potential prejudice to parties, and the availability of disciplinary proceedings for reputation vindication.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first assumed jurisdiction to hear the appeal on the procedural grounds engaging the Applicant’s Article 8 rights, in line with the reasoning in Re W (a child) and the concession by the Defendant. The court acknowledged that if unfairness were established, remedies might include a rehearing of the set aside application. However, jurisdiction was rejected for the substantive grounds of appeal challenging the judge’s factual findings, as the Applicant had no substantive interest in the freezing order and was not a party entitled to appeal.

The court reasoned that the Applicant’s sole interest was reputational, which does not confer party or appellant status. It rejected the Applicant’s argument that his role as an officer of the court and witness gave him special status to appeal. The court emphasized that the proceedings were between the Claimants and the Defendant, and no disciplinary or supervisory jurisdiction was exercised by the court over the Applicant.

On the merits, the court found no real prospect that the Applicant could establish that the hearing was fundamentally unfair or that his Article 8 rights were interfered with. The court noted the Applicant was closely involved in the litigation, was aware of the allegations, and had ample opportunity to respond. The judge’s findings were detailed and carefully reasoned. The court rejected arguments that findings were made without disclosure or opportunity to respond, or that the judge’s conclusions were inconsistent.

Even if procedural unfairness were arguable, the court exercised its discretion to refuse permission to appeal, emphasizing the need for finality for the actual parties, the concluded status of the main litigation, and the availability of disciplinary proceedings as an appropriate forum for the Applicant to challenge the findings. The court highlighted the risk of satellite litigation and the importance of protecting the administration of justice and other parties’ rights under Article 6 ECHR.

Holding and Implications

DISPOSED OF

The court refused permission to appeal by the Applicant. It held that while jurisdiction exists for procedural grounds engaging Article 8 rights, the Applicant had no real prospect of success on those grounds. There was no jurisdiction for substantive grounds challenging the factual findings. The refusal of permission prevents the Applicant from pursuing an independent appeal against findings of dishonesty made in related litigation to which he was not a party. The decision preserves finality for the actual parties and avoids unnecessary satellite litigation. The Applicant retains the opportunity to defend his professional reputation through disciplinary proceedings, which the court identified as the appropriate forum for such challenges.