Complaint to BWB February/2006

On 21 February 2006 I wrote to BWB with a complaint about Simanowitz's conduct of the case against MI5 in 2003, which had been purely on technicalities without any of the complaint material being mentioned, both to my dismay and the disappointment of the Information Tribunal. The Law Society's Consumer Complaints Service had given me the name of BWB's partner responsible for complaints as David Warren, to whom I wrote as follows;

Dear Mr Warren

I am writing to complain about the way BWB dealt with legal action against the Security Service between November/2002 when Mr Simanowitz took on the case and November/2005 when Mr Trotter wrote to refuse my request to bring the material complaint before a court or tribunal. As BWB's partner who deals with complaints it is to you that this letter is directed. You have 28 days to reply and depending on your response the matter may then be referred to the Law Society's Consumer Complaints Service.

By way of background, MI5 have been harassing me for 15 years as described in the attached article, and on 17/November/2001 they tried to kill me, as evidenced in the CD material and Mr Ginsberg's transcript. From my point of view the purpose of the legal action was to bring my material complaint before the Information Tribunal, where MI5 could either deny it, thus perjuring themselves, or admit their activities.

My complaint is of poor service from Simanowitz and possible negligence as detailed in the following material. When Simanowitz took on the case in Nov/2002 he opted to deal with the case purely on technicalities, on the understanding that at the appropriate point the material complaint would be heard. Because your firm is reputable, I followed Simanowitz's advice until Oct/2005 when I insisted that your firm deal with the complaint rather than just technical points. During 2003 I attempted to bring up the complaint material, but Simanowitz would not hear of it; he said "I almost want to stop you there" because he was concerned to "save you money", as hearing the complaint and evidence would involve several hours of work.

Simanowitz chose to conduct the action purely on the technical point of whether "proceedings" existed for a 28(6) claim to be brought, and because your firm is reputable, I foolishly trusted his advice. There were hearings before the Information Tribunal in June/2003 and November/2003, and it became clear to me at the latter that the Tribunal's purpose was to find out what the complaint was about, regardless of the procedural necessity for a 7(9) action preceding a 28(6) appeal. If I had been at the hearing as a litigant in person I would have told them what it was about; however Simanowitz insisted that the hearing be restricted to a technical point and the complaint material must not be mentioned, and again I mistakenly followed his advice. The result was 20,000 spent without any mention of the complaint grounds, which was grossly unfair and Kafkaesque. Every other plaintiff before the tribunal was able to state their claim; only in my case did "my" lawyers prevent the material being stated.

When I insisted in summer/2004 on telling Simanowitz the complaint material, first he tried to put it off, and after I had made the grounds clear Mr Trotter wrote to question my capacity to instruct your firm. The capacity question had been settled at the outset in Nov/2002 when I confirmed the existence of Dr Lawrence's letter to Simanowitz; and again in 2003 when Simanowitz and Pitt-Payne jointly agreed my capacity. Mr Trotter accepted the letters from Dr Lawrence and my GP as confirmation of my capacity, but made the acceptance conditional on BWB not telling a court or Tribunal the complaint substance; which was counter to those letters, which allowed for my claims to be investigated as would for any person in their full health. I consider Mr Trotter should have accepted the letters as they were written rather than adding a proviso.

Further, MI5's attempt to kill me in Nov/2001 was evidenced on a CD recording. Simanowitz claimed he could hear nothing on the recording; such a finding would be necessary for the case to be continued purely on technicalities. I sent the recordings to Mr Ginsberg, a talented specialist in forensic audio, who was able to hear much material. Therefore BWB were negligent in giving responsibility for listening to evidence to Simanowitz, because he was clearly unable to do so objectively.

The solution I would like is for your firm to continue instructions by a DPA 7(9) action enabling a 28(6) appeal, which would allow mention of the complaint grounds or such of them as would prevent the action from being thrown out by the court. In particular the Information Tribunal cannot strike out an action of its own volition, only if MI5 claim it has no merit; and if they did so they would be perjuring themselves, which from my view would be a satisfactory conclusion to the matter.

The purpose of spending 20,000 was to bring the actual complaint material to a court or tribunal, and I was very upset at the Nov/2003 hearing because I could see the Tribunal wanted to find out what it was about, and my own lawyers were preventing that happening. Throughout 2003 there was a promise by Simanowitz that the complaint would be brought before a court or tribunal, and that promise was broken when your firm refused to do so, which resulted in a complete waste of money on the 2003 actions with everything back at square one. However I wish your firm to continue the action as described, and request that you allocate the case to another solicitor in your firm who would be willing to bring the complaint material before a court or tribunal. If you refuse to do so then I will refer this complaint to the Law Society's CCS.

I was anticipating this letter as a preliminary to a complaint to the Law Society's CCS, because BWB had already made clear their unwillingness to bring the material to a court or Tribunal. I particularly thought that MI5's attempt to assassinate me in Nov/2001 should be mentioned to a court. In 2003 Simanowitz repeatedly refused to listen to the material complaint, because, he said, he wanted to "save you money".

My GP's letter and Dr Lawrence's allowed for my claims to be investigated - they said nothing about merely conducting the case on technicalities, which was Simanowitz's obsession.

I had previously requested of John Trotter that he allocate the case to another solicitor, and he had refused, since Simanowitz was his favourite. Stephen Lloyd wilted under pressure, and allowed a change of solicitor.

John Trotter wrote back to me soon after, as follows;

23feb06

BWB's incoming senior partner Stephen Lloyd wrote to me a month later as follows;

Dear Mr Szocik

Letter of complaint

I am about to take up the position as senior partner at Bates Wells & Braithwaite and it is therefore my responsibility to address your complaint about poor service from Lawrence Simanowitz of this firm dated 21st February 2006. As a point of information you addressed the letter to David Warren who is not at this firm but is at our branch in Sudbury.

I have carefully considered your complaint and have discussed it with Lawrie Simanowitz and John Trotter. At the outset it is important to be clear about the nature of the case which you originally brought to Lawrie Simanowitz to deal with. It is clear from the correspondence as well as his recall that you asked him to assist you in accessing any information about you that MI5 might hold. However your letter of complaint indicates that the purpose of your case was so that you could bring a more general complaint against MI5. Whilst that may have been your ultimate intention, you did not (except possibly as a secondary matter, and towards the end of the period during which you were instructing him) instruct Lawrie Simanowitz to assist you in bringing a grievance against MI5, except to the extent that it had failed to disclose information which it held in its files. The wider complaint you appear to have had against MI5 was not the focus of the actions which you and he took forward following your first meeting with him.

My understanding is that Lawrie Simanowitz decided at an early stage the best way to proceed with the case was on technical points which would challenge MI5's entitlement to refuse disclosure to you under Section 28, Data Protection Act 1998. His strategy was to show that the exemption from disclosure which MI5 was purporting to use, did not apply to your particular circumstances. This would have meant that you could then exercise your rights as a data subject and MI5 would have had to disclose the information on you that it held. The starting off point was to bring a claim in the Information Tribunal under s28(6) to show that MI5 could not rely on the exemption. Along the way it was determined that in order to satisfy the requirement of this section that there were "proceedings" you would have to bring a claim under s7(9) following which you would be able to bring a claim in the courts ordering MI5 to make disclosure.

I now propose to address the specific points in your letter of complaint in the order which you raise them:

1. You refer to "poor service" from Mr Simanowitz and "possible negligence". Whilst I do propose addressing the points in your letter I do not think that any of them relate to a poor quality of service with the possible exception of the point addressed in my paragraph 7 below (which, while it may relate to poor services, is not well-founded). Even if the statements you make in your letter were factually correct (which I do not accept) I do not think they amount to negligence which requires a high burden of proof. Nevertheless we do take every complaint seriously and you most certainly have the right to request a review, and therefore I address your concerns below.

2. As discussed above, Lawrie Simanowitz's decision to deal with the case on technicalities was not based on the understanding that at the appropriate point the material complaint would be heard. He did not feel that it would be necessary for the material complaint against MI5 to be heard at a hearing in order for you to achieve the access you required. Lawrie did advise you that one possible outcome of the subject access request might be that, on achieving access to the file, there would be nothing about you in the file, other than details of your complaint against MI5. You said that if that were the case you would be satisfied because, although it would not have confirmed your suspicions, you would have received a definitive answer.

3. Lawrie Simanowitz does recall your seeking to discuss the substance of the complaint with him and that he tried to dissuade you from doing so because it was not necessary to your subject access request. As it was not necessary he felt that it would save you from incurring further fees if he did not spend time considering your substantive complaint in detail. However, you did feel that you would like him to hear the substance of the complaint and eventually he made time for you to do so in the Summer of 2004.

4. Lawrie Simanowitz confirms that at the second tribunal hearing the chairman of the tribunal did express a desire to hear the substance of the complaint. He feels this came from the Chairman who wanted to give an opportunity for you to air the substance of the case so that it might advance your application, even though he also accepted that the tribunal's procedure did not allow him to do so. Having had a sense from you of the nature of the complaint it was Lawrie's opinion that were you to disclose it to the Information Tribunal it would not advance your case and indeed would seriously damage your credibility and would reduce the prospects of success before the tribunal. The tribunal were not aware of this and had assumed that there would be substantive merits to your complaint whereas the whole basis of Lawrie's strategy was founded on procedural rather than substantive points.

5. It is true that, after you put the complaint material before Lawrie Simanowitz in the summer of 2004 the nature of that material gave Lawrie Simanowitz and John Trotter cause to be concerned about your capacity. You are also correct to say that Lawrie Simanowitz had, prior to that, been satisfied as to your capacity, along with Tim Pitt-Payne. He and Tim Pitt Payne were aware, because you had discussed it with Lawrie, that you had had a history of mental illness but were both satisfied that this did not affect your capacity to instruct them on this matter. However, having seen the substance of your complaints Lawrie Simanowitz and John quite reasonably decided that they needed more recent confirmation of your capacity. This was forthcoming from your GP.

6. However, even though John and Lawrie Simanowitz were once again satisfied about the nature of your capacity they felt that the nature of the material that you wished to present before a tribunal would damage your credibility and would therefore significantly weaken your case. They accepted the doctor's letters which suggested that it would not be personally harmful to you for your claims to be taken forward but that is not the same as accepting that bringing the detail of the case before a court or tribunal would benefit your case.

7. You state that MI5's attempt to kill you in November 2001 was evidenced on a CD recording. The extracts you have sent in the document you attached to your letter entitled "Recorded evidence for forensic audio question" include lots of abusive words but nothing that amounts to good evidence of an attempt to kill you. Lawrie Simanowitz listened to the CD recording and could not hear anything except for a few indistinct words. He is not a specialist in forensic audio. It is hardly surprising that a specialist in forensic audio could hear more on such a recording than Lawrie Simanowitz. There is nothing negligent in giving responsibility for listening to evidence to the lawyer conducting your case. In saying that he could not hear anything distinct he was not saying there was nothing on the recording, merely that he could not hear anything.

8. I am grateful that you retain sufficient confidence in this firm that you request us to continue acting for you in this matter. However, having reviewed the case I concur with the decision of my colleagues. 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. We cannot act in a way which we believe is not in the best interests of our client. If, on the other hand, you now wish to bring a different type of complaint against MI5 (i.e. not to have access to your files, but that they have attempted to kill you) I decline from accepting your instructions in this separate matter.

9. You refer to a promise by Lawrie Simanowitz that the complaint would be brought before a court or tribunal. His whole strategy was geared to bringing the subject access request to a court or tribunal and that promise was not broken. Lawrie Simanowitz merely continued to advise that the procedural route was the best route to achieve what you had initially instructed him to do.

I note your intention to refer this matter to the Law Society if we do not accede to your request. It is of course your right to do so but this does not affect my view that neither Lawrie Simanowitz nor anyone else in this firm gave you poor service or were negligent.

Yours sincerely

Stephen Lloyd

Stephen Lloyd is a little inaccurate in the second paragraph of his reply. No-one spends 20,000 taking MI5 to a Tribunal without a damn good reason, and Simanowitz kept not wanting to find out what my damn good reason was - which was surely poor service. One does not pay 20,000 for an arid technical action to (dis)-prove legal points (and lose), which was what Simanowitz conducted in 2003. Little surprise that even the Security Service themselves described Simanowitz as "Heidi Fleiss", a Jewish prostitute.

The Information Tribunal themselves recognised this and at their Nov/2003 meeting attempted to find out what my complaint was about, but "my" lawyers Simanowitz and Pitt-Payne prevented this from happening - in Simanowitz's case because of his obsession with technicalities, in Pitt-Payne's case through corrupt obedience to the other side.

Regarding paragraph (7) of Lloyd's letter, five ordinary members of the public from the internet claimed they could hear some of the recording of Nov/2001, as could two forensic audio experts. Simanowitz claimed he could hear nothing, which points to either an inappropriateness of assigning him the task, or his mendacity with insisting the material complaint as being without substance.

I replied on 26 March 2006 as follows;

Dear Mr Lloyd

Thank you for your letter of 22 March, in which you offer to continue instructions providing I do not insist on disclosing the substantive case to the court. Having thought it over again I agree with your view, because as Mr Trotter says, a court would likely strike out an application on the substantive case, due to its improbability. However there are two conditions to my agreement. Firstly I request you allocate the case to a different lawyer. Your firm employs over fifty lawyers and having spent 20,000 following precisely Mr Simanowitz's direction and received absolutely nothing for that money - not even the chance to state my complaint - I would prefer if you would allocate the case to another solicitor. The second proviso is that we should not be afraid to state some of the substantive case if the Tribunal or Court requires it, or if MI5 appear to be making noises about my case being of some gravity - as they were doing in the Nov/2003 hearing, although apparently Mr Simanowitz did not perceive that exchange between MI5's counsel and the Tribunal president.

An additional motive in my agreeing to your offer is that if my complaint is correct, then MI5 would have a very difficult time presenting my case as having national security characteristics - even if they were to delete or "shape" data as they can probably be expected to do.

I reply briefly to the other points in your letter, for the record. It was Simanowitz's choice to restrict the case to technical points at the outset, although I did agree to his choice. I tried several times in 2003 to bring up the material complaint, which Simanowitz refused to "save" my money. In paragraph (2) you state "decision ... was not based on the understanding that ... the material complaint would be heard". Simanowitz has mis-informed you because there very definitely was an agreement that at some point the material complaint would be heard, and Simanowitz kept putting off that time, which he said was to "save" my money.

In paragraph (4) you admit that Simanowitz perceived the tribunal president wanted the complaint material aired. That would only damage my credibility if the complaint could be denied by MI5; and if the complaint had merit, then MI5 would find it impossible to deny a direct accusation. There was an exchange between the Tribunal president and MI5's counsel, which Simanowitz did not perceive, where Mr Tam implicitly claimed a serious crime exemption might apply to my data, instead of national security; that agrees with my stated complaint, and should have been given more consideration in your response to my letter.

Both my consultant's and GP's letters refer to my particular complaint details being allowed to be examined by the legal system. They do not mention an action based purely on technicalities unrelated to my case. However as stated in the first paragraph of this email I agree to your offer, subject to my conditions.

In paragraph (7) you state the recording has "nothing that amounts to good evidence of an attempt to kill you". I disagree. They employed the exactly same swear words regarding mental illness, and sexual obscenities, which they had employed on numerous other occasions, as evidenced. Further there was a shout of "I don't wanna shoot people". Only a technicalities fixated lawyer could deny the interpretation of those words. Further you say that "it is hardly surprising that a specialist in forensic audio could hear more on such a recording than Simanowitz". Again I disagree. I could hear those words clearly; so could five people who listened to the recording from internet discussion groups. Simanowitz's "inability" to hear anything on the recording points to his insistence on avoiding the complaint material and restricting the case to technicalities; most people with average hearing capabilities can discern the recordings' contents.

Further, after receiving a statement of capacity from my GP in April, Simanowitz deliberately ignored my urgings to progress the case, until the meeting in October at which I requested you reassign the case to another solicitor. Again, I request you reassign the case to a different lawyer, with a view to progressing the action. If you refuse then I will refer the case to the Law Society's CCS. Because Simanowitz's conduct of the case has achieved nothing with the everything back at square one, I request you be able to reallocate the case to another solicitor.

Yours sincerely,

BT Szocik

I tactically agreed to BWB's condition as to no mention of the substantive case, while insisting on a change of solicitor, on pain of a complaint to CCS. A further reason for change of solicitor was that Simanowitz did no work for five months in the summer of 2005, despite my repeated urgings, and seemed to lose motivation for the case as it threatened to move away from legal technicalities.

Mr Lloyd replied a month later as follows;

Dear Mr Szocik

Data Protection Subject Access request

Thank you for your email of the 26th March 2006. I apologise for the delay in responding.

We are prepared to allocate this case to another solicitor who will represent you - Selman Ansari who is an experienced lawyer in our litigation department.

As previously discussed we are accepting this case on condition that it is in our discretion whether or not to put any of the substantive case before any court or tribunal. I do note that you have asked that we should do so if the tribunal or court requires it. We will certainly consider this at the appropriate time but I think it is very unlikely that it would be in your interest for us to do so and we must retain the ultimate discretion on this. We also require that you pay all outstanding invoices and make a payment to us on account of costs before we re-commence working for you. Selman will write to you directly about this.

I note you have also responded to several other points in my letter for the record. I do not propose discussing those in any further detail.

Do feel free to contact Selman Ansari directly - otherwise I am sure he will contact you once he has briefed himself fully on this matter.

Finally, I note that you no longer propose bringing a complaint to the Law Society and am glad that we have been able to resolve your concerns.

Yours sincerely

Stephen Lloyd

Lloyd gave in to pressure and agreed to allow a different solicitor. He did not reply to most of the points I made in my letter. He also asked for a substantial payment on account of costs.

Selman Ansari wrote to me on 9 May 2006 as follows;

9may06

There was a good reason why BWB wrote off its previous costs - they consisted mostly of Simanowitz's incompetent inability to hear anything on the recording of the MI5 assassination attempt.

He also sent me an invoice for Simanowitz's unproductive work;

invoice-30sep04

I paid BWB's invoice rapidly. Ansari confirmed that his hourly rate was 210+vat, and that Simanowitz's reward for messing up my case in 2003 was to have been made a partner in their law firm. Ansari's rate was much higher than the 150+vat which Simanowitz had been charging in 2003, so he agreed to allow a more junior person to do some of the work to reduce costs. Also I wondered whether a Protective Costs Order could be obtained to guard against the other side's excessive costs should we lose; Ansari said he would investigate this.