The first step with instructing the new lawyer was to cover some formalities, so Ansari sent me a new Engagement Letter confirming his rate of £210 per hour plus VAT and a new Terms and Conditions letter. Both of these had changed slightly since I last signed similar documents for Adrian Corbett in 2001.
On 28 Jul 2006 Ansari emailed me to express his pessimism about obtaining a PCO to guard against the other side's costs, which if we lost would be expected to be very substantial. He told me he needed more time to go through in detail the case which he had taken over from Simanowitz;
Dear Mr Szocik,
1. I apologise for the delay in getting this matter started but you will appreciate that there were a number of formalities that I was keen to undertake before commencing work.
2. I have currently incurred approximately 4.5 hours on your case.
3. I hope to be fully appraised of your case and in a position to advise you about instructing a barrister towards the end of next week.
4. With regards to protective costs orders. As I indicated to you previously, I am extremely pessimistic about the possibility of us obtaining one in this case.
5. The requirements for the granting of a PCO are that:
(i) the issues raised are of general public importance;
(ii) the public interest requires those issues to be resolved;
(iii) as I mentioned before, the claimant has no personal interest in the proceedings;
(iv) it is just to make the order having considered the finances of the claimant; and,
(v) if the order was not made, the claimant would reasonably abandon the proceedings.
5. As you will appreciate, your proposed case is highly personal to you. I do not think that there are any issues that a court will find to be of public importance. There also may be issues regarding your personal finances.
6. However, aside from the cost, there is nothing to stop us from applying for a PCO. If we manage to obtain one, against the odds, then that is to the good. If we fail that we have not lost anything other than the cost of the application.
7. I now wish to go through your case in detail and will then be able to advise you more fully on the way forward generally, instructing a barrister and whether it is worth a shot in applying for a PCO.
On 13 August 2006 I emailed Ansari to let him know I had sent him a comprehensive summary of my complaint against MI5 together with a CD verified by forensic audio expert Ginsberg. I also made clear that this time round I would try to bring this information before the Tribunal.
I have sent you a "summary of complaint against MI5" document by post, with accompanying CD, which I encourage you to read in detail, since it will tell you what this matter is actually about. Simanowitz insisted in 2003 on not finding out what it was about, to "Save" my money, and restricting conduct to legal technicalities, which disappointed myself and the Tribunal, and wasted a lot of money. My priority this time will be to bring that material before the Tribunal. Please read it carefully.
Ansari wrote back on 14 Aug 2006 that he was willing only to take the case forward on technicalities, and that was his firm's view. He also complained about the contents of this website, in which I said that Simanowitz's advice to restrict the case to technicalities had been "wrong". He made clear he would do no further work until I conceded these points.
Thank you for the summary and CD, which I received today.
I have now been through the substantial part of your file and will shortly be wanting to clarify your instructions and confirm what you would like me to do.
However, before we begin down that road, I want to be clear that what you propose below is contrary to Mr Simanowitz's advice, advice that I think was right.
It was agreed with you, when your case was allocated to another lawyer within our firm, that it was on the condition that we would have discretion to determine whether the material in question would be put forward and my view is that it should proceed solely on the legal arguments.
You agreed to this condition.
If you are now not in agreement with this condition then please let me know as soon as possible as I am afraid that I may not be able to continue to work on this matter.
With regard to the summary and CD. I have actually already read the summary as you have provided it to us already. I have not listened to the CD as I am satisfied that the papers adequately cover its contents and because I do not believe it relevant to the success of your case.
On an associated point, I am somewhat concerned to see this firm and Mr Simanowitz's advice characterised in a negative way on the website www.five.org.uk, which I believe you run. At this stage, I would simply encourage you to remove the offending items and refrain from posting any more such comments. Additionally, it will obviously cause me a problem if you react to disagreeing with my advice by characterising myself and/or my advice on your website in this way. I hope that you can provide me with some assurance on this matter.
I look forward to hearing from you on the above points. I will not incur any further costs on this matter until I do.
I replied the same day.
My agreement with Mr Lloyd was that this case would be restricted to legal technicalities until such a time as MI5 made noises about the complaint being of gravity. I hope we are both agreed on that condition.
The CD contains a recording of MI5 trying to kill me, which Simanowitz was unable to hear any of, but which a respected forensic audio specialist was able to hear clearly. It may be relevant to the success of the case. However I do not suggest that you spend time trying to hear what is on the recording, because Ginsberg has done that.
If you can point out exactly which webpage and which word or phrase you regard as inaccurate on my website www.mi5.com then I will see if I can agree to remove or change it. I will not characterise yourself similarly providing you keep to the agreement of making the complaint known if MI5 state the complaint to be of sufficient gravity.
I hope that reassures you and that you will rapidly progress the case. Over three months have elapsed since Mr Lloyd accepted instructions and I am keen to see some movement.
On 17 Aug 2006 Ansari identified the webpage he objected to, and continued to labour the point (at my cost) that the case must be restricted to legal technicalities only. There was an essential error in his reasoning because it would be decided on the data which MI5 would present to the Information Tribunal in response to a 28(6) claim, and surely we should also present our own version of the data, to ensure MI5 did not misrepresent, omit or lie; because they have a 100% track record before the Investigatory Powers Tribunal, and it would be childish to think that that record was achieved honestly.
The part that I was concerned about appears at the bottom of the page linked here:
I have checked the file and Stephen's letter to you of 22 March 2006 states (at point 8)
"If your aim is still to try to assert your right to exercise subject access we would not wish to refer to the substantive evidence that you have and it must remain in our discretion whether we do so. Unless obliged to do so by a court or tribunal we would not wish to disclose the material to a court or tribunal because we consider that would fatally undermine the credibility of your case."
Therefore it is not if MI5 make noises about the complaint being of gravity but if a court or tribunal oblige us to disclose the material. Again, the judgment on this must remain in my discretion.
Whilst I am keen to progress your case for you, I am aware that you fell into dispute with Lawrie and am concerned that this will happen again. I also do not wish to incur costs for you that will ultimately be futile (I should remind you that these discussions do incur costs).
That is why I need to be crystal clear with you from the outset that there is every chance that your substantive case (such as that contained in your summary and CD sent to me the other day) will not make it before a tribunal or court.
If this is problematic for you then I think we should be frank about that now before more costs are incurred.
I note your frustration at the apparent delay in progressing your case but I am afraid a lot of time has been taken up in engaging in important formalities and for me to read in to your case. I appreciate that you feel that there is quite a distinct point that needs to be litigated but I cannot conduct your case without understanding the quite complex history and law behind it. This is, I am afraid, the cost of instructing a new lawyer.
I hope that you understand. I also hope that the above is acceptable to you. In anticipation that it is, I am continuing to go through your file with an aim to progress your case with you next week. However, I do need assurance on the points raised.
I wrote back to Ansari on 20 August, rejecting his apparent request for total censorship of any mention of the legal case, and objecting to his use of my money to argue his firm's partisan points.
hi Selman, thank you for your email.
> The part that I was concerned about appears at the bottom of the page linked here:
Please tell me exactly which word or phrase you regard as inaccurate. You cannot ask for blanket censorship on any aspect of the legal case, so if you tell me which aspect is inaccurate, I will suggest alternate text.
> I have checked the file and Stephen's letter to you of 22 March 2006 states (at point 8)
The question of what to present to the Court has already been the subject of extensive discussion between Stephen Lloyd and myself, in particular his letter of 22 March 2006, and my subsequent letter of 26 March 2006. These letters govern the conduct of this case and your email does not add to this discussion, merely repeating it. Moreover I am worried by the costs of your repeating the discussion; I estimate your email will have taken maybe 30 minutes to write at a cost to me of about £ 100. If you intend to further repeat the discussion then please do not charge me for any such emails. I hope these statements are sufficient assurance to you as to the conduct of the case, which was decided several months ago, and that you will not raise the point again; and certainly not at my further cost.
The next step is firstly to resolve the question of a Protective Costs Order, which I asked several weeks ago, and you have not yet definitely replied to. Once that is settled, we must instruct a barrister with a view to a 7(9) claim in Court. I look forward to hearing from you on these points in the near future.
Ansari finally finished reading the case file from 2003, and wrote to me again on 23 Aug 2006. Attached to his email was a document outlining the status of the case and the way forward. He protests that Simanowitz's advice was "not wrong" and insisted I remove that reference from my website, which for harmony I did. He also refused to use his firm's money to argue his firm's partisan points; like a good lawyer, he insisted that his firm's interests be chargeable to the client. At the time my sole source of income was my disability benefit.
I have now been through your case file. Please find attached a letter that sets out the issues and the way forward. I would be grateful if you would return to me on its contents.
Turning to your email of 20 August 2006, the parts of the site that I am particularly concerned about are the following lines:
"Simanowitz told me the priority was to "save you money"; his advice on the November hearing was;"
There is then a quote. Followed by:
"Simanowitz's advice was wrong, because the tribunal did want to hear the complaint grounds at that hearing."
"Essentially Simanowitz's advice was wrong, and my understanding of the legal system was insufficient to realise that I should have told the Tribunal the complaint material."
From my reading of the file, Lawrie's advice does not appear in any way wrong (and that has also been this firm's position throughout). Further, as you will see from the attached letter, I agree with his strategy and have put to you a way of advancing it. I would therefore like some reassurance that I will not find myself in a similar position to Lawrie later down the line.
I note your comment about repeating the discussion. However, your previous email (of 14 August 2006) was a mischaracterisation of this firm's agreement with you. Therefore, I am afraid, the relevant parts of the discussion needed to be repeated.
I reiterate, if you are not prepared to allow me to run your case as I see best (which is very likely to mean that your substantive or factual case never makes it before a tribunal or a court), either now or by way of denigration on your website or elsewhere, then we must be clear about that now. If you are not so prepared, then you must consider instructing other lawyers as I am not prepared to continue to be instructed by you.
I also note your comment about costs and again say that I cannot let these points lie unresolved (to my satisfaction) and I cannot use the firm's time to resolve them.
Finally, you raise an issue about the Protective Costs Order point. I have replied to you as definitively as I can on this in my email of 28 July 2006. You will remember that I have said that I am pessimistic about us being able to obtain such an order (for the reasons set out in that email) but am happy to instruct counsel to attempt to obtain one.
I hope this is all satisfactory.
Ansari says he replied definitively regarding the PCO on 28 July, but in fact point 7 of his email of that day shows that his reply was intended to be provisional only. He sent me an extensive document on the history and conduct of the case, as follows.
1. I have now been through the substantial part of your case file. I am aware of the need to limit costs and I have therefore continued myself to what appear to be the key pieces of correspondence and information. I have not been through every document or item of correspondence.
2. I thought that a sensible way forward would be for me to set out my understanding of the key historical events, our objective and the way forward. You can then tell me if I have missed anything or if I have mistaken your objectives and/or my instructions from you.
Introduction and Objectives
3. You have attempted to find out from the Security Service (SSer) what information it holds regarding you.
4. The SSer has admitted that it holds some information about you. This information relates to correspondence that you had with the SSer, and, about a complaint that you subsequently made to the Security Service Tribunal (SST, the predecessor of the Investigatory Powers Tribunal, IPT). However, the SSer would neither confirm nor deny (NCND) that it held anything further on you.
5. This, despite a fairly complex history, set out below, is where the matter stands today.
6. Your objective, as far as instructing Bates, Wells & Braithwaite (BWB), is to challenge the SSer's refusal to NCND and to be informed fully what data the SSer holds about you.
7. On 28 February 1997 you made a complaint to the SST. Your complaint was rejected, by a letter of 2 June 1997.
8. On 10 December 2001 you made a subject access request (SAR), pursuant to section 7(1) of the Data Protection Act 1998 (DPA) to the SSer.
9. On 20 March 2002, the SSer responded to your SAR by making a preliminary point that much of their activity was exempt from the requirement to comply with your SAR as it was covered by a National Security Exemption certificate (the Certificate), issued under section 28 DPA (which allows the SSer to NCND in circumstances covered by the Certificate). However, the SSer went on to confirm that it did hold some information on you, which was set out in an Appendix to the letter. The information set out in that Appendix appears to relate to an approach made by you to the SSer, its response to you, and, your complaint to the SST. Beyond revealing possession of this information, the SSer would NCND that it processed any further data regarding you.
10. On 7 May 2002, following the SSer's response to you, you appealed to the National Security Appeals Panel of the Information Tribunal (IT) on the basis that the information that you sought did not come within the terms of the Certificate.
11. On 9 May 2002, you also made a request for assessment, pursuant to section 42 DPA, to the Information Commissioner (IC).
12. On 16 May 2002, you also made a SAR to the ITP, regarding the data that its predecessor, the SST, would have had in relation to the complaint that you made to it (and any subsequent interaction the SST then had with the SSer).
13. In response to the appeal to the IT, the Home Secretary (who was the Respondent as he had issued the Certificate, his response being contained in a Respondent's Notice) submitted, in short, that your appeal was an attack on the NCND policy itself. This policy had already been unsuccessfully attacked in the Norman Baker MP case and should not be re-litigated.
14. On 19 July 2002, the IC responded to your request for assessment of 9 May 2002. The IC declined to deal with matters that involved the Certificate, and, noted that you had other avenues of appeal open at that time. The IC did find that the SSer had taken in excess of the 40 days required by the DPA to respond to your SAR. For this, the IC stated that it would write to the SSer to highlight the appropriate procedures under the DPA.
15. On 26 August 2002, after receiving no response from the IPT, you submitted another request for assessment to the IC in relation to your SAR to the IPT of 16 May 2002.
16. On 30 October 2002, the IPT replied to your SAR of 16 May 2002. In that response, the IPT stated that the "only" personal data it held about you was your name, date of birth and address. It then went on to NCND that it held any other personal data about you.
17. On 4 November 2002, the IC responded to your request for assessment in relation to the IPT. The IC stated that the IPT had taken in excess of the 40 days required by the DPA to respond to your SAR. Therefore the IPT had not complied with the DPA. However, as the IC understood that the IPT had now provided the requested information, it would not be taking the matter any further.
18. After some debate and confusion between the Secretary to the IT and the parties (both of whom had now instructed solicitors, BWB for yourself and the Treasury Solicitor for the Home Secretary) about whether your appeal to the IT was under section 28(4) or 28(6) DPA, it was settled that the appeal was actually under section 28(6) DPA. The Secretary therefore allowed the Treasury Solicitor to resubmit a response.
19. The Treasury Solicitor put in his response on 13 March 2003. In short, this response stated that an appeal under section 28(6) DPA required "proceedings" to be extant and that, in the absence of such proceedings being extant, the IT had no jurisdiction to hear the appeal. This letter was followed by one of 14 March 2003 which stated that the previous response was a preliminary point and not the Respondent's Notice (which I cannot locate and, presumably, was never submitted).
20. On 7 April 2003, after some correspondence between BWB and the IC, the IC confirmed its view that the Certificate also covered the IPT.
21. By a note of 18 June 2003, the President of the IT, Sir Anthony Evans, set out his reading of the facts and the law so far and ruled that a preliminary hearing was required.
22. I understand that the matter was settled. By a decision dated 20 November 2003 (but signed by the President on 25 February 2004), it was ordered that, by consent, the section 28(4) and 28(6) DPA appeals be dismissed but that, should you re-appeal under section 28(6) DPA, the Respondents (the Home Secretary, the SSer and the IPT) would not take a point that the appeal had previously been dismissed.
23. On this basis, I think that I should now move to issuing court proceedings against the SS, the IPT and the Home Secretary to enforce your SAR. We can then apply to adjourn it and re-litigate the section 28(6) DPA point before the IT.
24. I would like to instruct counsel now, on the above basis, for advice on commencing the court proceedings and the adjournment or stay, and, for the subsequent appeal to the IT on our legal point.
25. If you instruct me that you are satisfied with all of the above, I will continue.
On 24 August 2006 I wrote back to Ansari, having removed (for the sake of harmony) from my webpage the references to Simanowitz having been "wrong" to restrict the case to technicalities in order to "Save" my money.
I have removed the two references to Simanowitz's advice being wrong from the Death Squad webpage. I hope this satisfies you and that you will not insist on wasting any more of my money on the discussion. However I am not sure it is proper for you to waste a client's money in censoring his webpages. If you wish to continue this discussion then it should be at your firm's cost and not mine.
My dispute with Simanowitz emanated from our meeting of 06/10/2005 at which he was personally offensive and expressed hostility towards me. As long as you can avoid similar behaviour then I will not refer to you in those terms.
You did not answer definitively about a Protective Costs Order on 28 July. You said, "I now wish to go through your case in detail and will then be able to advise you more fully on the way forward generally, instructing a barrister and whether it is worth a shot in applying for a PCO." In other words you put off the issue of a PCO. If you now wish to represent that you have answered the question then I am happy to accept your answer and not apply for a PCO.
I agree entirely with the contents of your letter and "Way Forward" paragraphs. We must find a new barrister who will bring the case to Court, and since we obtained an opinion from Mr Nicol I suggest that we attempt to find a barrister from his chambers, Doughty Street Chambers, who would be willing to take the case forward. Then we would bring a 7(9) court action leading to a 28(6) appeal. However we should only sue MI5 and not the IPT; there is nothing to be gained that I can see from suing IPT, and it will only increase my costs.
Please be advised that I will be in Canada from this Saturday 26 August for most of September. Therefore please send further communications via email only, which I will access while there.
Please could you also tell me how many hours you have spent on the case so far.
For further emails, please see the next file in this series.