Tubero v. Toomey (Hansard, 4 November 1986)

§ The Attorney-General

I apologise for the length of this answer.

On 19 December last the hon. Member for Hackney, South and Shoreditch (Mr. Sedgemore) made in this House serious allegations against the senior master of the Supreme Court Mr. J. R. Bickford Smith, TD concerning his handling of two interlocutory applications in the Queen's Bench division in two separate actions between the same parties. The hon. Member had given no previous notice of his allegations, and it is understood that the rule of the House forbidding adverse references to the higher judiciary except on substantive resolution does not apply to masters of the Supreme Court. Later the hon. Member wrote to the Lord Chancellor enclosing a report from the solicitors acting for the plaintiffs in the proceedings. The Lord Chancellor has made extensive inquiries about these allegations, involving the solicitors for the defendants and counsel representing both parties in the proceedings as well as the senior master himself and Sir Neil Lawson, who heard the appeal in chambers on the first summons.

Both sets of proceedings arose from a claim by a Mr. Tubero and an associated company ("the plaintiffs") against the thousands of members of over 40 syndicates at Lloyd's, of whom only three were named as representing the rest. One of the defendants, but not one of those named, was a Mr. John Bickford-Smith who was a member of at least one of these syndicates. (I refer to the defendants collectively as "the defendants" and to Mr. Bickford-Smith as "Mr. Bickford-Smith the under-writer").

The claim arose from a contract of insurance against theft by the defendants in connection with the plaintiffs' jewellery business in Los Angeles. The claim was based on an allegation that the plaintiffs had suffered loss from a theft of jewellery at their Los Angeles premises on 4 August 1981.

Origially the claim was pursued against the dependents in the United States district court of South Florida. The defendants (then sued as "Lloyd's of London") disputed the claim on a number of grounds, including a denial that the alleged theft had taken place. On 17 May 1984 and 24 September 1984 the plaintiffs lost in interlocutory proceedings in their proceedings in the district court. The plaintiffs themsleves have never pursued these proceedings further since by an order dated 23 May 1985 the European American Bank were substituted as plaintiffs. Subsequently the plaintffs started separate proceedings in the state courts of Florida and New York. Those in the state court of Florida were dismissed as "duplicitous". It has not been ascertained exactly what became of the New York proceedings. On 1 August 1984 the plaintiffs commenced the first set of English proceedings in the Queen's Bench division of the High Court in London, by writ No. 1904 M 2943. These proceedings were founded on the same cause of action as those in the Florida district court. On 28 November 1984 the defendants issued a summons to dismiss these proceedings as an abuse of the process of the court. This was heard by the senior master on 13 December 1984. He allowed the summons and dismissed the action. The plaintiffs subsequently appealed but on 25 March 1985 the appeal was dismissed by Sir Neil 408W Lawson sitting as judge in chambers. In a letter to the Lord Chancellor enclosing a note of his ex tempore judgment, Sir Neil Lawson describes the case as the clearest possible case of abuse of the process".

The allegations concerning the first English proceedings

In his remarks to the House of 19 December 1985 the hon. Member alleged that in relation to the hearing in December 1984 the senior master had "grabbed" the case and insisted that he should deal with it. There is no truth whatever in this allegation. The case had originally been assigned to Master Turner, but in accordance with everyday practice in the Queen's Bench division, the defendants requested the masters' secretary to arrange for the senior master to take the case in view of his knowledge of United States law and procedure.

The hon. Member also suggested that the senior master had an interest in the case which he failed to disclose. There is no truth whatever in this. The senior master had no such interest. It appears, though accounts differ, that in one way or another counsel for the plaintiffs told the senior master that one of the defendants was a Mr. J. Bickford-Smith, but it does not appear that this was by way of objection but to avoid any conceivable embarrassment, since the senior master's initials are "J.R." and his name Bickford Smith though not hypenated is also identical. The senior master has a clear recollection to the effect that he explained that the underwriter was probably a cousin of his.

That the point was not seriously pursued before the senior master is clear not only from the recollections of counsel but also from the fact that it was not raised again in the proceedings.

The relationship allegation

In the course of his speech on 18 December the hon. Member for Hackney, South and Shoreditch said I have had a genealogist check the position and I can report that the grandfather of both of them— that is both the senior master and Mr. Bickford-Smith the underwriter— was George Smith This would have made them first cousins and if true it would have been at best a serious reflection on the judgment of the senior master if (which did not happen) either party had objected to his taking the case and he had insisted on hearing it. But it is not true. Whilst it is not suggested that the hon. Member wilfully misled the House, the information of the genealogist disclosed by the hon. Member shows a very different situation.

It is true that the two Bickford-Smiths had a common ancester in one George Smith. He was not the grandfather of either and therefore they are not first cousins. He was the great great grandfather of Mr. Bickford-Smith the underwriter and the great grandfather of the senior master. The two men are thus second cousins once removed. That Mr. Bickford-Smith the underwriter, one of at least 15,000-odd defendants, had a minute interest in the proceedings is undeniable but can hardly be held to justify the intemperate criticism to which the senior master was subjected by the hon. Member. When these facts were brought to the hon. Member's notice in case he wished to make a personal statement to the House, he attributed his error to a "slip". Since the correct genealogy was apparently in his possession at the time, it may be thought to be rather worse than that.

The allegation that the senior master lied

The hon. Member also said: 409W Master Bickford Smith lied to counsel. Yes, he lied. He said: 'You will not find another master in this corridor, nor a single judge in this building, who is not a Lloyd's underwriter.'

The attribution of this remark to the senior master rests solely on the evidence of the solicitor appearing for the plaintiffs. It appears to be wholly incorrect as well as irrelevant and is in fact nonsensical. The senior master emphatically denies that he made this statement, and the solicitor's recollection is challenged by every counsel in the case, including the plaintiffs' own counsel. In fact it was clearly not made. The senior master is himself not an underwriter and would therefore be a living disproof of the assertion. The hon. Member was unable to provide any supporting evidence for this allegation except the solicitor in question. The alleged "lie" was never told. The allegation is clearly either fantasy or fabrication.

The allegation concerning the defendants' solicitors

The third allegation related to the defendants' Solicitors.

The hon. Member said: Further, what is happening in this case when of the solicitors, Elborne Mitchell, Elborne is a member of Lloyd's council, is a consultant in the case and is also a defendant in the case".—[Official Report, 18 December 1985; Vol. 89, c. 464–65.]

Again this is incorrect. Mr. Elbone was not a consultant in the case. At no stage did Mr. Elborne deal with the proceedings. Messrs. Elborne Mitchell and Co. were indeed the defendants' solicitors on the record, but the proceedings were dealt with by another partner.

The plaintiffs, who had lost their case before the senior master and had their action dismissed as an abuse of the process of the court, appealed to Sir Neil Lawson. Neither the notice of appeal nor anything said at the hearing of the appeal bears any trace of the matters complained of by the hon. Member, and though Sir Neil Lawson gave leave to appeal to the Court of Appeal the plaintiffs made no attempt to do so.

The second set of English proceedings

Instead of making use of the leave to appeal granted them on 4 April 1985 the plaintiffs proceeded to issue a second writ against the defendants (serial number 1985 M 1458). Their cause of action was different from that in the first English proceedings and inconsistent with it. This second writ seems to have contained a claim that on 19 March 1985 (about a week before the hearing by Sir Neil Lawson on 25 March) an agreement in writing by way of accord and satisfaction had been made between the two firms of solicitors settling the plaintiffs claim for $US 2 million. It is difficult to see how this could ever have matched with the plaintiffs' conduct a week later in prosecuting their appeal before Sir Neil Lawson in the first proceedings which as stated above was in respect of the original loss and not on the alleged agreement.

The second writ was also the subject of an application to dismiss or strike out the claim as an abuse of the process of the court. On 11 June 1985 the senior master ordered all previous proceedings to be struck out and for technical reasons a fresh statement of claim to be delivered. The plaintiffs were ordered to pay £300 in costs. In spite of the adverse order by the senior master the plaintiffs complied with it and did not appeal. Nor did they raise at the hearing any contention as to the suitability of the senior master to deal with the summons. It seems inconceivable 410W that they should have acted in this manner had there been any substance in any of the serious allegations made against the senior master.

The revised statement of claim delivered as the result of the hearing on 11 June 1985 was met by a further application by the defendants to dismiss the second English proceedings as an abuse of the process of the court. This case came before the senior master on 9 and 17 October 1985. In the event the plaintiffs again lost. The senior master dismissed the action, which then permanently disappeared. Again no objection was made to the senior master taking the summons. Again the judgment was not appealed. The senior master concluded that the proceedings disclosed a "crude attempt" by the solicitors to the plaintiffs to obtain by trick wording money for their clients to which they knew they were not entitled at the expense of a United States bank to which the plaintiffs (or one of them) was or were indebted and of the underwriters, and the senior master expressed disapproval of the conduct of the plaintiffs' solicitors.

It is worth recording that the district judge in the United States district court had formed a similarly unflattering view of the plaintiffs and their advisers. Inter alia the district judge said (23 May 1985): It is painfully obvious that the affidavit submitted by Tubero is false. It should also be noted that the officer who notarised the affidavit is Robert H. Anderson II, Tubero's counsel… It is clear on the face of the record in the main action that there has been a total lack of good faith prosecution (sic) in the main action… The actions of Tubero's Counsel, Robert H. Anderson II are among the most unprofessional that this Court has witnessed. His behaviour can only be described as a blight on the reputation of the general legal community. It is the undersigned's opinion that Anderson's actions herein raise, serious questions regarding his fitness as a member of the legal profession".

Other matters

I turn to two other matters referred to by the hon. Member in his speech of 19 December. The first is the reference to freemasonary which appears to savour more of fantasy than fact. Contrary to what he has suggested Sir Neil Lawson is not a freemason, and, so far as can be ascertained, none of the counsel is a freemason.

The second other matter is a criticism of a letter as "pathetic" which it is alleged that the plaintiffs received from the Lord Chancellor's Office. This can only refer to one or both of two letters dated respectively 10 May 1985 and 4 September 1985 and written respectively 10 May 1985 and 4 September 1985 and written respectively to Mr. Tubero and to the American attorney Robert H. Anderson II (referred to above). In both of these the plaintiffs were properly advised that any objections to the hearing of a proceeding by a particular judge should be taken at the hearing in accordance with advice received.

Conclusion

The Lord Chancellor has looked into this case closely and can find no foundation whatever for the allegations which the hon. Gentleman has made against the senior master. Nor is there any evidence that Sir Neil Lawson, of the members of the Bar concerned in the case, or the defendants' solicitors, failed to deal with the matters before them on their merits, or that there was anything improper in their approach. The hon. Member cites a theory of some masonic conspiracy in support of his allegations. There is no basis for such a theory. So far as is known to the Lord Chancellor freemasonry is a perfectly 411W lawful organisation and in any case, apart from the senior master, none of the persons involved in the proceedings appear to be freemasons. In particular, Sir Neil Lawson who disposed on appeal of the first proceedings is not. Though this has not influenced him in any way, the Lord Chancellor has asked me to say that he personally is not, nor has he never been, a freemason, but that he is a name at Lloyd's though not a member of any of the syndicates involved in the proceedings.

I regard it as most unfortunate that such serious and damaging remarks of this kind, which on investigation are apparently without any foundation whatever, should have been made in the House about a member of the judiciary. There is a well understood rule in the House that senior judges may not be attacked in debate save on a substantive motion. Whether or not a similar rule should apply to other judges and if so of which grades could only be decided by the House itself. But it may at least be thought that to make allegations of this kind under cover of parliamentary privilege in the middle of the night without prior notice to the Minister charged with replying, if not a misuse by the hon. Member of his rights, is at least contrary to the elementary rules of natural justice and fair play.