Barristers' Opinion, and Competency Questions

Barristers Hanif and Coppel delivered an opinion on 15 January 2007 which came as a surprise to me because I thought we had agreed on the DPA 28(6) route. They sought to widen the legal action (and make it much more expensive) by turning it into a Human Rights case with a European dimension, as shown in the following PDF.



Specifically Coppel argued that English law did not allow me free and fair access to my data, and proposed a highly expensive legal action to argue this point. Since I had been promised a maximum of £ 1,500 costs by Hanif I objected strongly to this course of action and to their request for £ 2,000+vat for the opinion. Ansari replied as follows.

Dear Tadeusz,

Thank you for your email below.

To take your points in turn.

I did say that I intended to issue an invoice once the claim had been issued. However, in order to issue a claim and follow the section 28(6) strategy, I needed to instruct counsel (counsel that I asked you whether you approved of and of whom you replied that you did approve). Upon instructing counsel, they are of the opinion that the section 28(6) strategy will not satisfy your objective. Therefore, the issuing of a claim has become a more complicated matter and requires more work on our part.

As you know, we are already £1,500 over the amount that you have on account with us. Further, counsels' fees have now been incurred. I cannot therefore continue on this case without issuing an invoice unless you wish to disregard counsels' opinion and continue with the section 28(6) strategy.

With regard to the discount of £1,500. Again, I said to you that I would try and get our bill as near to the £4,000 you had on account with us as possible. I have spoken to our partners and they have only authorised a discount of £1,000. This is, in itself, a sizeable discount and comes on top of further discounts that this firm has provided to you in the past.

With regards to the further £500 that you mentioned to be knocked off if the claim was not issued, I did not and do not agree to that. As I have mentioned to you. The involvement of counsel has elongated this matter considerably. Counsel was instructed by us on 13 October 2006. Their advice has only just arrived and changes the basis of our approach.

You may, of course, choose to disregard counsel's advice and proceed on the basis of the section 28(6) strategy.

With regard to the £4,000 you have on account with us, this is mentioned in the covering letter. Our invoice shows how much we have charged you for work undertaken and must show the full amount. I would ask that you read the invoice in conjunction with the covering letter.

Therefore, I would ask that you do not disregard the invoice that has been sent to you but settle it promptly.

I must reiterate that this is a complex and time consuming case in which the law and facts are not straightforward. Any untoward delay in your case has been immaterial, acknowledged and apologised for. However, a great deal of delay has been caused by the facts of the case, such as the correspondence between yourself and the senior partner of this firm, between yourself and myself regarding the basis upon which we accept your instructions, and, by counsel's consideration of the case.

I am happy to discuss any of these points with you but ask again that you settle our bill (which consists of the difference between the invoiced amount and the £4,000 we have on account from you) as soon as possible.

Regards

Selman


I spoke to Ansari on the phone on 30 Jan 2007 and told him that a doctor at my practice had made a casual remark that it did not sound as if I was competent to instruct lawyers. It was not my usual doctor, Dr Walsh, who made the remark. Ansari wrote;

Dear Tadeusz,

Further to our conversation today, as I discussed, I have managed to get counsel's fees down to £800 for Saima (down from £1,000) and £1,200 (from £2,000) for the opinion that they have drafted.

I understand that you have been to see your GP (Dr Walsh) and that you have been advised that you are no longer competent to instruct us.

We are obviously disappointed that this is the case but as it is the case, it is sensible if we stop acting any further on this matter and wait until we hear from you further.

With best wishes

Kind regards

Selman


I wrote to Hanif on 2 Feb 2007;

Dear Ms Hanif / Mr Coppel

Thank you for your opinion which I received recently. Firstly I had no idea you would be producing such an opinion at significant charge. Selman has repeatedly promised me that you would file a 28(6) action and you have in fact produced a claim form for such an action, but you did not submit it to the court.

I must make absolutely clear that I do not want any human rights action of the type you describe, because I cannot afford it; the costs would run way beyond my capabilities. At most I could afford a 28(6) action of the type described in paragraph 50 of your advice, to obtain a copy of the Security Service's response to SST on 24 April 1997.

Also you have said in paragraph 6 of your opinion that you have serious regard for the contents of my note in this matter. I think my note and supporting material should be submitted to the Tribunal at the same time as the application to explain our side of the story, because we cannot realistically expect MI5 to be unbiased in presenting their side of the story.

Please advise whether you would be happy to conduct such an action, and what the likely costs would be. You will understand that having spent over £ 30,000 with BWB in the last four years I am somewhat short of money and am looking for a cheap alternative to the very expensive human rights action you propose.

Please respond quickly to this email. I would value a response by Monday or Tuesday.

regards T.Szocik


Hanif replied rapidly, and copied Ansari into the email. She further replied;

Dear Mr Szocik,

Further to my previous e-mail, Philip and I have discussed one issue on which we are content to revert to you directly, obviously copying Selman in too.

In our advice we set out the various avenues of challenge available, so as to explain which one we thought would be the most effective in terms of addressing your complaint. We note your point about s28 (6), however both Philip and I are of the view that such an action would only give you limited relief i.e. at best, even if successful, it would only give you access to that one letter. However, we do take on board the point you make, and clearly, at some stage in the future, this is a matter which it would be prudent for us to discuss between ourselves.

In respect of the other matters, as I said we will get back to you accordingly, via Selman.

Kind regards

Saima Hanif


Ansari's next email of 5 Feb 2007 was primarily concerned with finding me incompetent while extracting the maximum amount of money from me. He lies that Dr Walsh had expressed an opinion of incompetence, when he had not, and in fact Dr Walsh produced a further written opinion of competence.

Dear Tadeusz,

1. We spoke earlier today on the phone.

2. You asked me to reply to Saima's emails of 2 February 2007.

3. As I stated, I am not quite sure what you would like me to reply to in those emails.

4. In our phone conversation you asked me to give you a rough estimate of costs for a human rights based action as set out in Philip and Saima's opinion. You also discussed proceeding with a section 28(6) appeal on the basis that the Security Service letter of 28 April 1997 may be disclosed. You also want your evidence of harassment by MI5 to be put before the tribunal.

5. As I mentioned on the phone. You have now told me that your GP has informed you that you are not competent to instruct us. In those circumstances, it would be remiss of me to take any further instructions from you on this matter or to incur any further costs.

6. I have now spoken to a partner at this firm. I am told that you assured Lawrie Simanowitz that you were competent to instruct him. In fact, you repeatedly assured this firm that you were so competent. On 24 January 2005 you sent us a letter from your psychiatrist, Dr Robin Lawrence, dated 4 January 1997, who supports your right to make reasonable investigations and advises you to find out what you can within a budget and then put the matter behind you. On 26 April 2005 you provided us with a letter from your GP, Dr Walsh (who has now told you that you are not competent to give instructions), that you are competent to provide instructions, after we raised with you, by way of a letter of 8 February, the issue of your capacity.

7. We have therefore followed Law Society procedures to the letter in ensuring that you were competent. You raise the issue of a Law Society complaint. Whilst, of course, you are free to raise such a complaint and we would regret having to defend a complaint in a case where this firm has given so much, I cannot see what basis your complaint could possibly take.

8. Whilst I understand, and am sympathetic to, your frustrations regarding costs, this firm has legitimately incurred those costs in following your instructions. If this has not resulted in the outcome that you desire because of the operation of the law and the considered opinion of counsel then you cannot hold the firm responsible.

9. In handling your case, the firm has written off a great deal of costs incurred by you. Further, I have personally written off a large amount of time in order to deal with your case, which is difficult and complex. The firm has been scrupulous in ensuring that you are capable of giving instructions and remains so. I therefore cannot carry on acting for you unless I am assured of your competency.

10. I also cannot contemplate writing off any fees that you have incurred (and are currently outstanding on) beyond the £1,000 I have already written off and told you about (and further costs in dealing with questions such as this for which, of course, we do not charge you). Further, counsels' fees have been greatly reduced after a lot of negotiation by myself on your behalf. The reduced sum remains payable by you. That the opinion does not deliver what you desire it to cannot mean that this firm can underwrite its cost.

11. I am sorry to have to write in these terms but I have tried to be as frank as possible about the situation that we are in.

Kind regards

Selman


I replied on 13/3/2007.

Dear Selman

Thank you for your email of a month ago. It is correct that I spoke to a GP at the Clapham Family Practice a month ago and they seemed unsure as to my capacity to instruct you. However I have since spoken to Dr Walsh and his opinion as to legal action is unchanged from that stated in his letter of two years ago. Therefore in my view I still retain capacity to instruct you, and I wish the action to go ahead.

I wish to make clear that I am seeking an action under s28(6) and not the wider European option proposed by the barristers, which sounds more expensive than I can afford. In fact I see that Saima wrote a draft statement of claim for a 28(6) action, but that was followed by an opinion in which the barristers preferred the (more expensive) European option. The 28(6) claim could be based on the subject access request dated Nov/2001 which reveals the existence of a letter from MI5 to SST, and I would be quite happy to obtain just that letter, because it would contain a summary of MI5's activities towards me until 1997.

In short, I wish you to submit the 28(6) claim as written and you may invoice me when you have done so. We were agreed that you would submit that claim by early December and as I feared we have overshot that date by a wide margin. Therefore, I will pay your invoice once the claim is submitted, but not before. Also I think it is quite unfair to charge me £2,000 for an opinion which I did not request, and for the barristers spending so much time in preparing the document when I had no prior knowledge that they were going to do so. However in order to be amicable I suggest I pay £ 1,000 for the opinion, even though it is of no value to me. I will pay that amount and your costs once you have submitted the claim, as we agreed late last year.

Please therefore confirm your continuing acceptance of my instructions and the chosen option being the 28(6) route. I do not see any need for an expensive conference because I choose the 28(6) option and not the European or any other option.

My capacity to instruct you is continuous since 2001 so if you decide not to accept Dr Walsh's view as expressed in his letter then I would be claiming back all fees paid since that date; I hope you will therefore accept my continuing capacity to instruct your firm.

Please revert to me as soon as possible on these instructions.

regards, Tadeusz


In his following email and letters, Ansari refuses to answer the point that Dr Walsh had found me competent to instruct solicitors. Instead, he insists on a psychiatrist's report of competence, which I provided to him in the form of a letter from Dr Bailey. He also insists on being paid immediately, whatever my state of competence to instruct him. He refuses to accept my GP's statement, which Bates Wells had accepted previously. There is obviously a change of mood in Bates Wells' handling of my case, undoubtedly related to their having taken over £ 30,000 from me and left me in a state of poverty. He also insists that I pay him a further £ 5,918.62 prior to BWB's ascertaining my state of capacity, which is a disreputable course of action for his firm to take.



I received an overdue notice on the invoices, which I wrote to Mark Flewitt (BWB's Credit Controller) about on 1 August. He repeatedly professed embarrassment at Ansari's lack of response. Six weeks later I was forced to complain to John Trotter, Ansari's supervising partner, about the non response.

Dear Mr Trotter

I regret I must make a complaint about poor service from Mr Ansari. I have been trying to obtain as email attachments outstanding invoices from him for over a month now, and he has been reminded by Mark Flewitt several times, yet the outstanding invoices have still not appeared. Mr Flewitt has apologised repeatedly for the non appearance of the invoices which you request that I pay.

I understand you request that I pay £ 2,350 Counsel's fees even though that work was not agreed prior to it being carried out and the invoice came as a total surprise to me. However I am suspicious of an invoice which grew from £ 940 on 15 Jan 2007, marked as "Advice with Philip Coppel", to £ 2,827.05 on the 60 Day Overdue Account statement issued 22 June 2007. I simply cannot see that Ansari has done enough work to merit the increase of almost £ 2,000 since we have had comparatively little communications and I understand he has not been communicating with Counsel in this period either. Therefore I would request a detailed invoice for bill number 275644 plus timesheets or some other way of proving that work has actually taken place. It is this invoice which I have been requesting for a month and a half and which Ansari has failed to provide, leading to this complaint.

regards Tadeusz Szocik


Senior Partner Stephen Lloyd replied on 26 Sep 2007 as follows.

Dear Mr Szocik,

Thank you for your email of 17 September 2007, addressed to John Trotter but which has been passed to me as Senior Partner. I have now spoken to Mr Ansari about this matter.

Your complaint is that you have not been provided with the invoices that you have requested. I enclose the last two invoices that we have issued to you (numbers 274088 and 275648). I also include a third invoice that appears not to have been issued to you in error but has been included in your overdue account statement dated 22 June 2007.

With regard to the second paragraph of your email. I am slightly puzzled by your reference to an invoice dated 15 January 2007 for £940 as we have no record of such an invoice. Our records show that invoice number 274088 was issued to you in January 2007 for the sum of £5308.65.

Invoice number 275648 is a disbursements invoice for counsel's fees. It does not include any of Mr Ansari's time.

Mr Ansari accepts that a month has elapsed between your requests for clarification of your invoices and his response. However, you remained in debt to the firm and continually disputed the principle of incurring of counsel's fees for reasons which have exhaustively been debated with you and which you still dispute. Whilst your position was that you were, in principle, not liable for counsel's fees which have been incurred, Mr Ansari told you that he could not prioritise your issues over other work. This was made clear in his letter to you of 18 June 2007 (which I enclose) and subsequently on the telephone.

On this basis, as a gesture of goodwill and to mark the end of our relationship, I am willing to write off the invoice which was issued in draft (which, in normal circumstances, we would reissue) for the amount of £2,827.05. However, I must insist that you pay counsel's fees and all remaining fees payable to this firm.

As has been made clear to you on a number of occasions, a great deal of time has been spent on your case by solicitors at this firm. We are satisfied of their performance at all times. If your case has not gone as you would have liked it to, that is regrettable but it is not, in any way whatsover, the fault of this firm or its employees. As such, I hope you will appreciate this gesture of goodwill and pay the outstanding monies owed to this firm promptly but within 30 days in any event.

Yours sincerely,

Stephen Lloyd


The invoices were sent as follows;



It is notable that BWB see nothing wrong in invoicing a client they consider incapacitated. Also their invoice merely says "see attached narrative" and gives no details of the work that has been done during that period, for which I requested proof in the form of timesheets; suggesting that they have deliberately overcharged for that period.

Also it is offensive of Lloyd to state "mark the end of our relationship" since that would be dependent on the doctor's opinion, and not on Lloyd's whim.

For further emails, please see the next file in this series.