Apparently Lloyd's letter of 26 September 2007 was intended to state that he was terminating the retainer and his firm was no longer acting on my behalf. However it was far from clear from his letter that this was the case and I took his letter to indicate merely a wish or offer to terminate the retainer, and not the actual termination of the retainer, which would be illegal and unreasonable.
On 8 November 2007 I replied to Lloyd's letter of a month previously, as follows.
Dear Mr Lloyd
Thank you for your letter dated 25 September 2007. I am enclosing a Resolution Form provided by the Legal Complaints Service since this matter may end up with them. To summarise the situation, you are attempting to terminate our relationship on the basis of my incapacity to instruct you, but I have provided you with several doctors' letters showing that I am fully competent to instruct solicitors and entitled to legal services.
I told Adrian Corbett at our very first meeting in January 2002 that I had schizophrenia, and he accepted my instructions (and cheque on account) without question. When he passed matters over to Simanowitz in November 2002 Corbett would have told him of that, because yours is a responsible firm and it would have been the responsible thing to do. Again Simanowitz requested that I speak to someone about the proposed legal action against MI5 and was happy to accept my report of Dr Lawrence's positive opinion regarding legal action (and cheque on account of costs).
Here is a list of the cheques I have paid your solicitors during my association with your firm;
Jan.02 £500 (at meeting) plus £300 (end of Jan)
Oct.02 £500 (on account)
17/6/03 3,300 (AIB)
In total I have paid BWB the sum of £ 33,986.86. If you had any doubts of my capacity they should have been raised at the outset, not after I had paid your firm £ 33,986.86 for a legal action which never got off the ground.
As it is Corbett was satisfied of my capacity in January 2002, and Simanowitz was satisfied of my capacity when he accepted my instructions. He and barrister Pitt-Payne jointly agreed I was competent to instruct them. However Simanowitz did not want to find out what the case was about - he insisted on restricting it to technicalities only, which he repeatedly explained was to "Save You Money". When I finally insisted on telling him the substance of the case in September 2004 John Trotter wrote to me asking for a doctor's confirmation of my capacity. He refused to accept Dr Lawrence's statement because it dated from 1997, in which he "support[ed] your right to make any reasonable investigations." I provided Mr Trotter with a statement from my GP Dr Walsh confirming my capacity dated 7.4.2005 which your firm accepted in a letter from Simanowitz dated 27.5.2005. In the meantime Simanowitz secretly wrote to the GP to ensure the letter was authentic.
In January 2007 I saw Dr Hughes at my practice, who is not my main GP (that remains Dr Walsh). He seemed dubious about the legal action against MI5 which I misinterpreted as casting doubt on my capacity. I reported the conversation to Ansari, who misunderstood and thought that Dr Walsh had changed his mind regarding my competence to instruct you. That that was not so was confirmed by a stronger statement of capacity from Dr Walsh dated 3.4.2007, which you ignored. I also provided you with a letter from my psychiatrist Dr Paul Bailey dated 19.4.07 who said he "consider[ed] that he is entitled to access appropriate legal instruction", which you also ignored. Finally I saw Dr Hughes again on 22.10.2007 who clarified his statement from January. When I asked him if he considered me competent to instruct solicitors he said "I think you are".
In the meantime it has emerged that Simanowitz lied about the reason for his insistence that no part of the material case be revealed to the Information Tribunal at the November 2003 hearing. In an email dated 17 Nov 2003 he wrote;
"One thing is crucial, that there should only be one matter discussed at that hearing, which is whether your appeal can be suspended or should be dropped and revived after you have instituted court proceedings. If you start discussing any other issues, given that you have not prepared to discuss them, you will almost certainly lose and the risk is then that they cannot be raised again subsequently."
In a phone call at the same time he said there must be no discussion of the merits of the case, because we had not prepared for that, and that should be argued at some point in the future.
However to you he presented a different picture. In your letter to me dated 22 March 2006 you said;
"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."
In other words, to you he said the substantive material should never be presented to the Tribunal, which was diametrically opposed to what he had written to me. Both statements cannot be simultaneously true.
You ask to speak to my psychiatrist on the phone but I cannot agree to that, because Simanowitz's lie and Ansari's mis-statements and bias in attempting to find me incompetent after I have paid you a lot of money mean that reporting of the conversation, which would be impossible to prove, might be biased and further misunderstandings might occur. I encourage you not to waste my psychiatrist's time and accept the several letters which have been written indicating my capacity. If you still insist then you can send me a list of unbiased questions which I will put forward to my psychiatrist, and I will ask him to write to you with a response. However if you spend your company's time in this way then I insist it be at your cost and not mine, because I believe I have already provided you with ample confirmation of capacity.
If you decide that I am unfit to instruct you then that will have been the situation from January 2002 since my state of health is constant from that period and you will have accepted £ 33,986.86 from a client you insist to be incapacitated despite all available evidence. In that case a complaint to the Legal Complaints Service will rapidly follow and I would claim back the fees I have paid you, through court action if that were to prove necessary.
If you are persuaded of my capacity then firstly that statement must have finality; there can be no further vacillation on this question; and secondly, I will pay your outstanding fees and counsel's fees, apart from the invoice which you cancelled in what you described as a gesture of goodwill.
Attached to the letter I sent BWB's senior partner doctor's notes from Dr Lawrence, Dr Walsh (2005 and 2007), BWB's acceptance of my competence dated 27 May 2005, and Dr Bailey (April 2007). I also sent him a Resolution Form from the Legal Complaints Service, because I anticipated a complaint on BWB's handling of the case. Essentially the letter was giving BWB a choice between continuing the case (if they judged me competent) or returning my fees (if they judged me incompetent). Lloyd in his reply gave no indication that his firm had terminated the retainer.
I emailed Lloyd on 14 December 2007.
Dear Mr Lloyd
On 9 Nov 2007 I sent you by special delivery a written complaint and LCS resolution form which you received on 12 Nov 2007, and which you should have replied to within 28 days. However 33 days have elapsed without your acknowledging my letter or making any response. I therefore request you immediately acknowledge the letter, and respond to it within the next few days. If I do not receive any answer from you by next Tuesday then I will further attempt to contact you.
As mentioned in my letter I have confirmation of capacity from Drs Lawrence, GP Walsh (twice), and Bailey. On 27 May 2005 you accepted my capacity to instruct you, which remains constant. Because of Ansari's misunderstanding of our phone conversation, and your subsequent ignoring of further letters indicating capacity to instruct solicitors, you are currently refusing to acknowledge or deny whether I have capacity to instruct you. I encourage you to accept the doctors' letters which have been sent to you on 9 Nov 2007 without further questioning, because there is no reason why you should further question their professional opinion; there is in fact no capacity issue, because Ansari misunderstood our telephone conversation, so my state of capacity has not changed.
There may be a perfectly good explanation why I have not received your response, for example it may have been lost in the post. Please indicate whether you have made any reply, because I have a legitimate expectation that you respond to my letter, and I have an entitlement to pursue this question in good faith. You have a regulatory obligation to answer within 28 days of receiving my letter. Yours is a responsible firm and I request you act responsibly.
I maintain confidence in your firm and I do not wish to terminate the retainer, but if you continue to make no response then eventually I will pursue my right to complain under the retainer to the Legal Complaints Service about your lack of response. I will give you every opportunity however to answer, and I feel entirely justified in my wish for a response. I do not want to bring a complaint to the LCS and hope you can give an early reply so we can move forward with this case.
Again, I had no idea that Lloyd had terminated the retainer, and I stated that I did not wish to terminate the retainer and would be reluctant to bring a complaint against his firm to the Legal Complaints Service. Lloyd had not replied within the 28 day timelimit for a response and I was encouraging him to make a reply which he was unwilling to do.
Lloyd acknowledged my complaint on 17 December 2007, beyond the 28 day deadline. However his reply did not arrive having apparently been lost in the post. Simanowitz had vigorously defended MI5 when previous letters had been lost in the post stating that these things happened and MI5 crimes must not be suspected. Lloyd's reply finally arrived on 8 January 2008, after I had further complained on his lack of response, after 59 days with no answer, well in excess of the Law Society's stipulated 28 days. I told Lloyd;
I wish to continue to instruct your firm and would complain to the Legal Complaints Service on the grounds of your poor service only as a last resort, but if you continue to delay then I will have no other option.
but he gave no indication that he was no longer accepting my instructions. Lloyd apologised (again) that his letter had not been sent or had gone missing, and sent it again.
Dear Mr Szocik
Thank you for your letter of 8 November 2007. I apologise for the delay I replying. I can now respond as follows.
1. It may be helpful if I set out a brief summary of your involvement with our firm and your legal actions. You first made a complaint to the Security Service Tribunal (SST, the predecessor of the Investigatory Powers Tribunal, IPT) in 1997. This complaint was rejected. You then made a Subject Access Request (SAR) to the Security Service (SSer). The SSer responded to you by saying that it did have some information relating to you which dealt with your earlier application to the SST. However, the SSer would neither confirm nor deny (NCND) that it held any other information about you, in accordance with its standard policy. A great deal of correspondence subsequently flowed between yourself, the Information Commissioner and the IPT relating to your SAR. This culminated in a hearing of the Information Tribunal (IT), where you were represented by Bates Wells & Braithwaite (BWB) and Timothy Pitt-Payne of Counsel. This hearing was settled as it was agreed that the appeal that you sought to bring was under Section 28(6) of the Data Protection Act 1998 (DPA) and that section required "proceedings" to be extant before an appeal could be brought (and none were at that time). This was a technical point which required proceedings to be issued. The matter then fell into abeyance for some time. During this time, you sought to complain to my predecessor, as senior partner, John Trotter about the conduct of your case by Lawrie Simanowitz. I did not accept then, and do not accept now, that Mr Simanowitz had wrongly handled your case in any way. Nonetheless we agreed that another lawyer from this firm would be assigned to your case and the new lawyer, Selman Ansari, would be free to conduct your case within the parameters of his professional judgment.
2. Mr Ansari took conduct of your case around May 2006 when you deposited £5,000 (excluding VAT) with us.
3. There was then a certain amount of debate between yourself and Mr Ansari about the past and future conduct of the case and Mr Ansari took some time to go through the considerable amount of papers that had accumulated . On 13 October 2006, Counsel (Saima Hanif of 4-5 Gray's Inn Square) was instructed to make the Section 28(6) application. The drafting of this application took some considerable time and prior to the claim form being finalised and issued, Ms Hanif considered it prudent to set down the issues in an opinion. In drafting that opinion, Ms Hanif sought the assistance of a more senior barrister, Philip Coppel (an acknowledged expert on information law). With your approval, Ms Hanif and Mr Coppel produced a joint opinion on 15 January 2007. That opinion stated, in short, that the approach that we had so far adopted (of making an application in order to have "proceedings" extant for the purposes of making a main appeal under Section 28(6)) was likely to fail. Ms Hanif and Mr Coppel's opinion was that the SSer's NCND policy could not effectively be challenged under the English legal system and therefore this was a breach of your human rights. In order to get over the time limits that had expired in your case, Counsel advised a fresh SAR, the refusal of which would lead us down Judicial Review proceedings and ultimately an application to the European Court of Human Rights. You were advised that this was a lengthy and costly action. You were not satisfied with Counsel's advice and requested that Mr Ansari pursue the Section 28(6) application that you had been advised by Counsel was likely to fail.
4. On 30 January 2007, you rang Mr Ansari and told him that Dr Walsh had said that you were no longer competent to instruct him. Mr Ansari confirmed back to you in an e-mail of the same day. On 13 March 2007, you e-mailed Mr Ansari and stated: "Thank you for your e-mail 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 2 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 action under Section 28(6) and not the wider European option proposed by the barristers, which sounds more expensive than I can afford."
5. Following this exchange, there were some further exchanges regarding access to your psychiatrist. However, Mr Ansari made it clear that (i) he was no longer convinced of your competence to instruct him, and (ii) he was not, in any event, prepared to undertake a course of action which Counsel had advised against.
6. In deciding your capacity to instruct him, Mr Ansari, despite being a barrister, employed by BWB considered himself bound by the 8th Edition of the Guide to the Professional Conduct of Solicitors. Chapter 24.04 of the Guide provides that: "A solicitor cannot be retained by a client incapable of giving instructions. However, there is a legal presumption of capacity - and bear in mind that different levels of capacity are required for different activities. If in doubt, consider seeking an opinion from the client's doctor (with the client's consent), having first explained the relevant test of capacity. However, you should also make your own assessment and not rely solely on the doctor's assessment."
7. Mr Ansari is quite clear about his telephone conversation with you on 30 January 2007. You called him and quite clearly stated that you had had a conversation with Dr Walsh and that he had told you that you were no longer capable of instructing BWB. This is reflected in his contemporaneous email to you, reflecting that conversation. The basis of which you did not dispute until 6 weeks later. Then on 3 May 2007, Dr Walsh provided a letter stating that "As a point of principle [Mr Szocik] ought to be allowed reasonable access to the legal system to determine the accuracy of his claims". Dr Walsh also endorses Dr Lawrence's comments that "you should have the right to make any reasonable investigations". Further, you have provided a letter from Paul Bailey, consultant psychiatrist dated 19th April 2007, who also considers that you are "entitled to access appropriate legal instruction". Mr Ansari took account of these notes that you had obtained. However, because of your unwillingness to accept Counsel's opinion and, your informing him that you no longer retained capacity on 30 January 2007, Mr Ansari, in accordance with the Guide, made the professional judgment that you no longer had the capacity to instruct him.
8. I now turn to some of the points in your letter which have not been covered above. Your primary point appears to be that if Mr Ansari decided at the end of January 2007 that you were no longer capable of instructing him, then this is a view which has retrospective effect and binds previous lawyers involved in your case. This is inaccurate. Each lawyer has an ongoing obligation to consider the competency of his or her client. As you point out, Mr Trotter and Mr Simanowitz made efforts to determine your competency by contacting your doctor. Your doctor's advice, at that time, was not obscured by your reports of variant conversations. Further, you appeared to be prepared to accept Mr Simanowitz's legal advice (albeit reluctantly). Since Mr Ansari has taken conduct of your case, you have repeatedly criticised Mr Simanowitz's advice and approach and sought that Mr Ansari change tack. Indeed, one of the points of delay between your cheque being deposited with us in May 2006 and instructions being issued to Counsel in October 2006 was that Mr Ansari had to ask you to remove defamatory comments regarding Mr Simanowitz's advice from a website that you controlled prior to any further work being conducted by him. Further, in your letter to me you again criticise Mr Simanowitz's conduct of your case stating that "he lied". In support of this baseless allegation, you give two quotes which are entirely at one with each other and not at all contradictory.
9. You state that £33,986.86 has been expended by you on this firm's fees and that no resolution has been reached in fact we have billed £22,581 plus VAT. As has been repeatedly pointed out to you, yours was a complex case which was always going to be difficult to progress, let alone win. The summary of events set out above clearly demonstrate that this was the case. It is accepted that there have been some delays on the part of this firm but none of these have been untoward or have affected the central difficulties of your case. Additionally, there has been some delay on the part of Counsel and further delays in receiving instructions from you. The writing off of fees previously offered to you by this firm (in addition to the thousands of pounds that have not been billed to you over the course of your involvement with this firm) more than adequately compensate for any delay. I say that they do so more than adequately because you have suffered no loss from the occasional delay that has occurred in this case. Also, once you began to refuse to meet our invoices, Mr Ansari made it quite clear to you that your case could no longer be prioritised over fee paying work.
10. Counsel's opinion of 15 January 2007 is unequivocal in stating that the making of the application, in order to advance your appeal that you seek, is doomed to failure. The alternative is to reissue your SAR and to pursue the Judicial Review/human rights angle. It is one of our terms of business (which I reiterated to you upon the reallocation of your case from Mr Simanowitz to Mr Ansari) that we must retain professional judgment in relation to the conduct of your case. You are asking us to jettison that professional judgment and to pursue a case which Leading Counsel has characterised as hopeless. To do this would open us up to further and more serious consequences should you lose. In any event, given the events set out above, Mr Ansari no longer regards it as appropriate to act for you.
11. Given the above, we cannot accede to your request to consider you fit and to receive further instructions from you. If you wish to pursue a complaint with the Legal Complaints Service then we very much regret this, but we shall have no option but to defend the conduct of this firm vigorously. We strongly advise that you do not pursue a complaint against us where we are confident of our professional and legal position. We are keen to facilitate the end of our relationship and given this, we are prepared to drop all outstanding invoices that you are liable for if this assists. If you are inclined to end this matter, following our rescinding all outstanding invoices, you ought to take independent legal advice. However, we should inform you that it remains open to you to make a complaint to the Law Society. The Law Society will take into account this correspondence and our decision to waive outstanding fees of £5,918.62 plus VAT and combined time of £1,551.
In summary, Mr. Ansari retains sufficient doubts about your capacity to instruct him, that it would be unprofessional for him to continue to do so. These doubts are based not only on the communications with doctors but also on your unwillingness to accept his and Counsel's opinion on the best way to progress your case.
Regardless of whether you do have capacity we believe we cannot continue to act for someone where our view is that their proposed course of action is set to fail and is not in their best interest and when they will not accept our advice to pursue another approach.
Lloyd's letter is first of all deliberate timewasting. He was well beyond the 28 day period for a response as stipulated by Law Society rules. Further his letter is an absolute pack of lies, quite deliberately. "The matter then fell into abeyance for some time" because BWB refused to do any work on the case and Simanowitz kept on going "on holiday" before vital deadlines and not bothering to read my letters to him. I deposited much more than £ 5,000+vat with BWB; Lloyd even gets his numbers wrong. The letter says the opinion was "with my approval" but I had no clue they were going to produce such an extensive and expensive opinion ignoring solicitors' instructions. The 28(6) route was *not* likely to fail and the only reason Hanif and Coppel pretended it was likely to fail was because they wished to deprive me of my House. BWB had already stolen £ 33,986.86 from me but Coppel was a senior barrister and that was not enough for him; he wanted my House for his own, and there must be no argument.
There then followed a series of lies by Ansari who insisted that I was incompetent to instruct BWB despite numerous and repeated statements from doctors that I was in fact competent. Ansari insisted I had spoken to Dr Walsh; in fact I had spoken to Dr Hughes, who considered me competent to instruct lawyers, but Ansari insisted I had spoken to Dr Walsh and no amount of negation would sway him from his lie. Both Dr Walsh, who wrote a further opinion of competence, and Dr Hughes, considered me competent to instruct solicitors, but Ansari was having none of that and substituted his own opinion of incompetence (having never met me, and bullied me on the phone). Paragraph 7 of Lloyd's letter is a complete pack of lies which does not even merit comment because every single statement is false. Paragraph 8 ditto; Simanowitz made contradictory statements to Lloyd and myself, which Lloyd in his desperation to hang on to the money he had stolen from me insisted were not contradictory. Lloyd even lies in paragraph 9 as to the amount of money he will eventually have to return to me, since I have copies of cheques which prove I paid his firm £33,986.86.
In summary, Lloyd's letter is absolutely disgusting and calculated to hang on to the £33,986.86 he had stolen from me and was avoiding paying back. He brings Bates Wells Braithwaite into disrepute as a gang of scheming thieves, and he brings the wider legal profession into disrepute because BWB is supposed to be one of the more reputable companies in London, and if this is how a "reputable" company behaves then God help the others.
After this Lloyd continued to timewaste for many months, hoping that the deadline for a complaint to the Legal Complaints Service would pass and he would not have to face a complaint before the Law Society. On 13 April I told him his firm and the barristers were still under instructions and he did not inform me otherwise. I told him the barristers had gone outside their instructions which he did not answer. Nor did their Opinion characterise 28(6) as "hopeless"; it merely ignored solicitors' instructions. On 28 April I left a message which he ignored. He promised on 6 May 2008 a reply which never materialised. I complained on 13 May about serious timewasting, to which there was no acknowledgment, followed up by complaints on 14 May and 16 May to which again there was no acknowledgment. He was obviously timewasting to try to get past the six month dealine on the Legal Complaints Service complaint to stop them investigating, so he would not have to give me my £ 33,986.86 back, which is a completely disreputable course of action for any law firm to take, let alone one with the reputation of Bates Wells Braithwaite.
On 23 June 2008 Lloyd wrote a cocksucking letter "Without Prejudice - Save As to Costs" as follows;
Dear Mr. Szocik,
Data Protection Issues Etc.
I must apologise sincerely for not getting back to you since I wrote to you in April. Unfortunately a combination of seeking clarification internally from Selman Ansari and Lawrie Simanowitz about the work that we had done and my own pressure of work has meant that I have not been able to get back to you. I do apologise for this.
I have reviewed the position and would refer to the fact that in September I wrote to you "to mark the end of our relationship" and mentioned at that point that I was willing to write off the invoice which was issued in draft. I would suggest, however, as a further indicant of our goodwill that we are prepared to make an offer to you of £5,000.00 refund of fees in full and final settlement of any claims that you may have against this firm. I am offering this on the basis that I recognise that you have been disappointed that the case that you wish to bring has not achieved what you wanted to achieve and although on reviewing the file I consider that we have acted appropriately at all times, nonetheless in recognition of that understandable disappointment we are willing to make the offer I set out above.
Could you kindly consider this and come back to me and once again please accept my apologises for the delay in replying.
He wasn't apologising sincerely, he was trying to avoid a complaint to LCS and steal my money. I ignored his letter. Simultaneously I was trying to arrange a conference with barristers for them to explain their Opinion, which BWB initially refused to attend, then agreed, then refused again, as per the following letter from Lloyd dated 4 July 2008.
Dear Mr. Szocik,
Following our conversation the other day, I have reviewed the file.
On 25th September 2007 I wrote "on this basis as a gesture of goodwill and to mark the end of our relationship I am willing to write off the invoice etc". I believe that that is a clear indication of the fact that we were ending our work for you at that point and terminating the retainer.
In our letter of 21st December we said - paragraph 11 - "we are keen to facilitate the end of our relationship etc". We warned you at that point that it remained open to you to make a complaint to The Law Society. I must leave it to you as to whether or not you consider that you have grounds to make a complaint to The Legal Complaints Service.
I have reviewed the position concerning the proposed conference with Counsel. As a further gesture of goodwill, so as to seek to assist you, I was prepared to allow someone from this firm to attend that conference in order to ensure that it could take place. However, I am afraid doing that - even as a gesture of goodwill and on a without prejudice basis - would be unfortunately consistent with the fact that we have ceased to act for you. Consequently I am afraid that in order for you to take up the offer from Counsel for a conference you will need to instruct another solicitor to attend.
Therefore the conference with Counsel did not go ahead. Instead I complained to the Legal Complaints Service on 2 July 2008.