Yet More Communications with Ansari 2006

This file continues from the previous. In the first email dated 6 Nov 2006 Ansari tries to avoid sending the barrister my complaint summary document.

Hi Tadeusz,

I have contacted counsel again today and not managed to get in touch.

I will begin drafting the application this week, regardless of whether I manage to get in touch with Saima. I hope to have a listing date for you by 12 December (although this is down to the court).

On another point, I have not yet sent Saima the material relating to the recordings etc. Whilst I am happy to do so upon your instruction, I must advise you that this will increase the costs that you are incurring, which, for Saima's expertise, are currently very reasonable. As you will have seen from the Instructions to Counsel, they do not currently form part of her instructions or our case and I am concerned that this widens her instructions out on issues that are, as I have advised before, extremely unlikely to come up.

I await your further instruction on this point, after you have considered my advice on the matter.

Kind regards

Selman

On 7 November I reiterated my request for Ansari to send the complaint document to the barrister, which he had been reluctant to do, for the usual reason of "saving" my money.

hi Selman

Please do send the article, CD and Ginsberg transcript to Saima. You told me on the phone you kept copies of these, and I think it is important for counsel to know what the case is about, even if there are some additional costs involved. She must be curious as to the reason I have spent over 30,000 on this case anyway.

Please could you tell me which court we will be making the application to, High Court or my local County Court (Wandsworth). I have been told the latter would be cheaper but the decision is yours.

Please could you copy me on any future emails between yourself and Saima so I have some clue as to progress. I hope that is alright. Please also tell me approximately how many hours you have spend so far, at last update it was 17 hours.

I don't think it is such a "fine line" on the litigation because if we lose then it means the Tribunal has decided I am a threat to National Security, based on a description of my personal data which MI5 would be compelled to supply. That is the first step in Mr Nicol's advice and, technicalities notwithstanding, it is the purpose of the legislation. When OIC brought action on behalf of Mr Bloch, Tribunal apparently found Bloch was not of national security stature.

At the November 2003 hearing the President asked Mr Tam whether there was any seriousness to the case, and Tam made an informal admission and implicitly claimed a Serious Crime exemption. Obviously we must make clear to the court that MI5 persecuted me from 1990 to 1996, when they acquired Serious Crime responsibility with SSA 1996, and they have continued to harass me since they lost serious crime to SOCA in May of this year. Therefore according to legal technicalities they cannot claim that exemption. That should be made clear on your application to the court. Neglecting to state the obvious would mean that they might attempt to divert the action from the Tribunal, which we do not want.

Please also give me Saima's contact details, which I have asked for several times. Please respond to this email this week if possible.

regards Tadeusz

In his next email Ansari repeated that the substantive material must not go before a court.

Hi Tadeusz,

1. There are a few points here and I will respond to them slightly piecemeal, if I may.

2. With regards to your point about the "fine line". You are not considered a security threat simply because a court or tribunal declines to compel MI5 to disclose material to you.

3. With regards to the persecution you feel that you have faced from MI5, I have advised you, on several occasions now, that I do not advise that this material go before the court as part of our application. I have agreed with you that if the court asks to see it, we will put it before them. But not otherwise.

4. It is absolutely imperative that you are clear about this and that we do not enter into any further debate or discussion after this one. If you are not prepared to accept my advice (which, from the email below, you seem not to be) then, as I have clearly stated before, I must decline this instruction.

5. There are absolutely no two ways about this and I must be completely clear with you.

6. I apologise for not providing you with Saima's details previously. They are:

Saima Hanif
4-5 Gray's Inn Square
Gray's Inn
London WC1R 5AH

t 020 7404 5252
f 020 7242 7803

7. I would prefer not to copy you into every correspondence with Saima for no other reason than it is inconvenient and can affect discussion of the case. It is also most uncommon (probably for those reasons). However, if you would like me to do so, I will let Saima know and do that.

8. With regards to whether the application is in the High Court or County Court. I would have thought that a legal issue such as this would be better aired in the High Court because of the better experience of the judges there. But I shall take Saima's advice on this.

9. I will let you know about time incurred shortly. I am planning to bill you after I have issued your claim.

10. I hope this is satisfactory.

Kind regards

Selman

I agreed for Ansari to not copy me into every email between himself and Saima. I also told him what barrister Mr Nicol had said in his opinion in 2003, which is that the first stage of a 28(6) appeal would be for the Information Tribunal to look at whether my case was of National Security stature, because I thought it was not. I also expressed dismay that the deadline of 11 December 2006, the date of my return to London, was not going to be met with regards to listing an action.

Hi Tadeusz,

On another point, Saima has now drafted the application and I hope to issue it on Monday or Tuesday.

Saima has also drafted an advice that sets out all the issues, so that we are clear where we are working from and where we are going.

She has informally discussed your case with a more senior member of her chambers, Philip Coppel. Philip is one of the leading information law barristers in the country. Philip agrees that the Security Service's reliance on their certificate raises interesting legal issues. He would be keen to get on board and would be flexible as to fees so that he may be involved. Additionally, Saima feels that this case, due to the novel legal issues being raised, merits the involvement of a more senior barrister.

With the costs commitment (which I can have firmed up for you further, if you are amenable) that Philip has given, I do think that this is highly advisable.

Can you let me know your thoughts please.

Additionally, after informal consultation with Philip, Saima has pointed out that our court application is really a holding application whilst we go to the Tribunal. In those circumstances it may be cheaper and just as easy to issue in the County Court. I therefore propose to do that unless you tell me different.

I hope this is all in order.

Kind regards

Selman

At the time of writing of this email (15 Dec 2006) we were still expecting a 28(6) action, and the barrister in fact drafted an application for such a claim. Saima also wanted a more senior barrister, Philip Coppel, to advise on the issues, to which I agreed. On 20 Dec 2006 Ansari sent me the following email about our plans for a 28(6) appeal.

Hi Tadeusz,

To reiterate our discussion yesterday.

I attach a copy of the claim form for the court proceedings (which we will adjourn straight away). Please let me have your comments.

I am about to forward your email with your concerns about the serious crime exemption to Saima. My feeling is that, if you would like this incorporated into the claim form, it be incorporated into the application to the tribunal and not the court. This is because, as Saima notes in her email below, the court claim form has been kept brief.

Philip and Saima advise that the court application ought to be done almost immediately before the tribunal application. Therefore they advise that the court application be done in January.

I am in discussion at the moment with Philip's clerk about a definitive answer on fees.

I hope this is all in order.

Kind regards and season's greetings

Selman

On 22 December 2006 I wrote as follows to Ansari and Hanif. Essentially I wished to bring some of the material case before the Tribunal.

hi Selman

The claim form looks good but I would make one minor addition with the intention of making it clear that MI5 cannot use the Serious Crime Exemption. I would include a sentence (on the claim form);

"The Claimant contends he has been under continuous aggressive surveillance by the Security Service from June 1990."

I understand you wish to keep this case to technicalities, but this one sentence would set my mind at rest with regard to any risk of MI5's use of serious crime exemption, which Robin Tam plainly indicated they were considering in 2003. If you wish to reword the sentence then please do so, but please include it, and retain its essential character. This should be on the claim form and not on the tribunal application, because if MI5 claim a serious crime exemption then the case will never get to the tribunal stage, and would instead be decided by a judge in the county court.

The SAR was dated 10 December 2001, but MI5 sent me a form to fill out which was sent late January 2002. Also they claimed the cheque payee was incorrect, so they managed to spin out their response by several months. However in paragraph 2 of the claim form Saima is correct in specifying the date as 10 December 2001.

Before you submit any papers to the court, please send them to me to have a look at, just in case of minor tweaks.

Thank you for allowing to reduce your fees. I wish you and Saima a Happy Christmas.

regards Tadeusz

Hanif replied quickly that she would discuss the Serious Crime exemption with Coppel and revert to the client. Ansari replied on 5 Jan 2007 to my previous letter.

Dear Tadeusz,

1. I do not think that we have got the technicalities wrong but I will leave it to counsel to clarify the points I make here in her advice.

2. My understanding of the events (an understanding set out in my instructions to counsel dated 13 October 2006, which you saw) was, in short, that:

(i) you applied to the Security Service and the Information Tribunal to find out what information they held about you.

(ii) they both replied that they had information regarding your previous applications to them but would neither confirm nor deny whether they held any further information about you.

(iii) we then attempted an appeal against section 28(6) against the Security Service but the Security Service said that "proceedings" needed to be in place before that section could be used.

(iv) the case (in front of the Information Tribunal) was then settled on the basis that we could pursue a case in court which would constitute "proceedings" and the renew our section 28(6) challenge.

3. It is on this basis that we are making the county court application and then seeking an adjournment straight away.

4. My recollection of the papers (and, for costs reasons, I have not been through them thoroughly) is that the NCND policy was mentioned by the Home Secretary in his response and therefore this constitutes a reliance on the section 28 certificate.

5. I am not sure what you are referring to when you refer to the "Serious Crime Exemption". There is an exemption in section 29 of the DPA with regards to data relating, in short, to crime and taxation. I cannot see any reference to that exemption in the documents.

6. Again, I defer to counsel's opinion on this matter but I would have thought that some type of abuse of process argument would be open to us if, having settled the previous tribunal case on the basis that "proceedings" were not extant (and therefore allowing us to go and initiate "proceedings"), the Security Service then raised section 29.

7. You also mention the possibility that the Security Service might surrender any information it holds about you without a fight. The history of this case consists of you asking the Security Service to surrender information, they have done so but have NCND'ed that they hold any further information about you. If, upon our application to the Tribunal or the court, the Security Service departs from this position then this is all to the good and the case will not go ahead. If they do not (which on past form is the more likely), then the case will need to go ahead.

8. I must make quite clear that, even if we win, there seems to me to be an extremely good chance that the only information that the Security Service has regarding you is that that they have already told you about. You must consider carefully whether you wish to incur the expense of pursuing this case and obtaining no more information than you had previously.

9. Finally, I refer to your email of 22 December 2006 in which you request that a sentence be included in the claim form that

"The Claimant contends he has been under continuous aggressive surveillance by the Security Service from June 1990."

Again, I defer to counsel's opinion, but it is my opinion that this sentence absolutely does not take your case any further and would advise against including it.

10. I think that the way forward from here is for counsel to provide written advice on the case (which will provide a definitive answer to your points) and for me to then issue your county court claim form and then to issue the tribunal application.

11. I suggest you wait for counsel's written opinion and we can then have a conference to ensure that we are crystal clear as to what our strategy and way forward is from there.

Kind regards

Selman

I wrote to Ansari and Saima on 7 January 2007, as follows.

Selmam and Saima

Briefly, my understanding is that MI5 have never explicitly mentioned National Security NCND in response to my 28(6) claim. They mentioned it in response to my original claim which they took as a 28(4) claim but never to a 28(6) claim. They are therefore open to use a Serious Crime exemption instead, which is why we must include the sentence;

"The Claimant contends he has been under continuous aggressive surveillance by the Security Service from June 1990."

to make clear to them that they cannot use the serious crime exemption, which Mr Tam indicated in the Tribunal hearing of Nov/2003 was their plan.

I have explained this to you several times and I am disappointed that I have to explain it again because obviously you will charge me at the rate of 250/hour for your non understanding.

Also in November you told me you would file by Dec 11th, but you did not. The deadline then became Christmas, which you missed. It then became early January, which again is being missed. MI5 are constantly persecuting me and have recently sent people round the front of our house again to scream abuse, explicitly to discourage me from taking this case forward. You have told me you will not take the case forward unless the reality of the case is kept from the court or tribunal, and you have spent a lot of my money intimidating me to ensure none of the real case comes to court. Please bring this case to filing as soon as possible. If you do not file by February then I think a further reduction in fees is in order.

regards Tadeusz

The purpose of my email was to express disappointment with the missing of deadlines, and for the lawyers to consider seriously Mr Tam's remark at the November 2003 hearing that MI5 might use a serious crime exemption. Ansari replied on 9 Jan 2007 as follows.

Hi Tadeusz,

I am waiting to speak to Saima so that we can sort out her written advice to you and a conference. These are vital before we can proceed because there appears to be some confusion.

I have looked through the papers again and the entire basis of the Home Secretary's case was that we were proceeding under section 28(6) and that they were relying on the exemption certificate.

Again, I am not sure what you mean by the "Serious Crime Exemption" and all I have regarding the tribunal hearing is the Home Secretary's written case, a note from the Chairman and the Chairman's order. None of these refer to serious crime. Whilst serious crime may have been referred to, it does not appear to form any part of their case. In any event, I do not see how the inclusion of the sentence that you propose in any way counters the possibility of the Security Service raising an exemption under section 29.

Again, I must reiterate my advice that the inclusion of your allegations regarding Security Service allegations will not help your case and I am only prepared to put such allegations before a court or tribunal if this has been specifically asked for by the court or tribunal. I am prepared to add that I can continue acting on the case, on this basis, if counsel advises that putting such allegations before the court or tribunal is necessary for your case.

If we are in disagreement about this then, again, I must withdraw from this case. I will not depart from the advice of Lawrie Simanowitz regarding the presentation of this case because I concur with that advice.

I recognise that there has been some delay in this case but this is because of its complexities and because you have raised issues which have taken time to deal with (such as this one). It is also because Philip Coppel has come on board. This latter point, whilst causing delay (for which I apologise), can only benefit your case.

As I have mentioned, we do need to meet (along with counsel) in order to be clear as to the path of this case and I will get counsel to expedite their part in this process.

Kind regards

Selman

Ansari reiterates that the substantive complaint must not be put before the Tribunal. In a further email dated 9 Jan 2007 he says;

Hi Saima,

Further to my voicemail to you.

The reason for the lull in this case, was because Tadeusz asked for the lawyer (at this firm) who was previously dealing with this case to be withdrawn and for another lawyer to take the case over. This was the subject of some correspondence (including with the Senior Partner of this firm) over quite a long period. Would you like a statement to this effect?

I wonder if we could do the following in the next week or so:

(i) have a written opinion as to yours and Philip's thoughts on this case, following on from the instructions to you of 13 October;

(ii) a conference with yourself, Philip and Tadeusz; and,

(iii) once our way forward has been agreed and settled, for the documents to be issued.

I recognise that some of these actions are on you and some are on me. Does this sound like a sensible and achievable way forward?

Kind regards

Selman

In an email I sent the same day, I agreed to exclude the offending sentence from the claim form, and requested Ansari hasten the proceedings and issue a claim, which was seriously delayed. His next email to me, dated 11 Jan 2007, was as follows;

Dear Tadeusz,

Thank you for your email.

Whilst I appreciate that Mr Tam might have mentioned the crime exemption, none of the Security Service's pleadings or any other court or tribunal documents make mention of it.

With regards to the inclusion of the sentence and the bringing of reality to proceedings. My advice (along with Lawrie Simanowitz's advice previously) has always been that the airing of your allegations, regarding surveillance by the Security Service, in a court or tribunal will not further your objective of gaining either full disclosure from the Security Service or a confirmation that all files relating to you have already been disclosed.

I am disappointed that you characterise our consistent position as inexplicable or that I am in any way intimidating you. I am also deeply concerned that you are alleging that I am intimidating you into accepting a course of action.

When another lawyer (myself) was allocated to you by the Senior Partner of this firm, it was made clear that our advice regarding the conduct of your case would have to be accepted otherwise we would have to decline the instruction. This is not a matter of intimidating you or, indeed, to do with you at all. This is because we have a professional obligation to run any case in the manner we think fit. If our professional independence is curtailed then we must decline to act further as we will have been professionally embarrassed.

With regard to accelerating the case, I have spoken to counsel and Saima hopes to have her and Philip's written advice to us by tomorrow. We can then have a conference. I understand that the basis of their advice is slightly different now. Because of this shift in their advice (which I have not discussed with Saima, as I await her written advice) and because the case is complex, I think a conference is necessary. If Saima does not provide the advice by tomorrow, I will chase her. I will also endeavour to schedule the conference for as soon as possible, so that we can get moving on this case.

With regard to a further reduction in fees. You will by now, hopefully, have received our invoice. You will see that I have been able to write off 1000 from your bill, reducing it to approximately 4,500. Whilst I hope to be able to issue proceedings prior to the end of the month, I am afraid that it is unlikely that we will be able to provide you with any further reduction in fees. This is particularly as there has been some delay due to the involvement of counsel and the reading in time for this voluminous case, with a great deal of history, was considerable.

Kind regards

Selman

His invoice soon followed in the post.

Ansari continued to insist that the substantive case not be brought before the court, because they would be "professionally embarrassed". He then sent an invoice, without the claim having been issued, which was counter to our agreement that he would bill once the claim had been issued. I told him I would disregard the invoice until a claim had been issued.

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