Edmonds Marshall McMahon were recently successful resisting a Judicial Review brought by a convicted defendant challenging the decision of Southwark Crown Court to:
- Refuse to adjourn the hearing of its appeal against conviction;
- Refuse its attendance by video-link at that Appeal hearing; and
- Dismiss its Appeal by reason of that non-attendance.
Private prosecution
The Claimant in the Judicial Review was Lehram Capital Investments Ltd (“Lehram”), a UK company registered with Companies House, who had previously been convicted before the Magistrates Court of 3 charges of Fraud[1] and of delivering company accounts that were false, misleading or deceptive[2] in a private prosecution brought by Cyrith Holdings Ltd in March 2020.
The prosecution case was that Lehram had filed misleading, false or deceptive company accounts at Companies House over a number of years in that they had purported to be a dormant company. The accounts failed to reflect significant accounting transactions undertaken by Lehram in its acquisition and disputed sale of substantial Siberian mining assets, and the related protracted worldwide litigation.
At the heart of the prosecution was the allegation that those behind Lehram used the company as a flag of convenience. The prosecution case was that Lehram intended and was intended by its directing minds and wills to gain the advantages of running its operations through a limited UK company without incurring the costs that would have arisen had the company not falsely misrepresented its dormant status. This allowed those running Lehram to distance themselves from the company and avoid the responsibilities and attention that otherwise comes to a limited company.
Lehram’s response to the criminal investigation and the court proceedings was characterised by refusals to engage with correspondence, refusals to participate at all or effectively in court proceedings and the tactical instruction and dis-instruction of lawyers in accordance with the perceived best interests of the company at the time.
Appeal against conviction
Throughout the time prior to the final hearing of the Appeal against conviction to Southwark Crown Court, Lehram continued to employ tactics intended to obstruct the court process and avoid substantive engagement with the case’s merits, This included the refusal of correspondence at the company’s registered address, instruction and dis-instruction of legal representatives, refusing to correspond directly with the prosecution and preventing the prosecution from being able to contact them leading to an unorthodox communication system with the Crown Court becoming a conduit, and the repeatedly filing of extremely lengthy purported legal arguments including applications to adjourn the trial which were refused.
Significantly, when unrepresented, Lehram continuously failed to comply with its duties to authorise a person to represent it instead attempting to rely on a seemingly unconnected person describing herself as an ‘anticorruption campaigner’ and a ‘polyglot translator’ who refused to identify her whereabouts in the World on the basis of alleged threats. All correspondence and submissions filed on behalf of Lehram was done so ‘on behalf of the officers of Lehram Capital Investments’ rather than signed off by them.
None of the named directors put their names to any of the communications sent to the Court and communications came from a number of different generic email addresses, sometimes signed off by a Miss Maria Sokolova and other times Mr Saavedra. Ms Sokolova provided no evidence of her authority – legal and actual – to act for and on behalf of the appellant as its representative despite the clear direction from the Judge that she do so prior to the trial if it was intended that she represent Lehram.
The Appeal Judge therefore found that, as no one had been properly authorised, caution had to be exercised by the Court in proceeding to deal with a party without the sort of representation envisaged by s.33(6) Criminal Justice Act 1925 and CrimPR 46.1 particularly when they do not appear in person.
Those writing on behalf of Lehram applied to attend the hearing by way of video link, declining to specify who would attend other than assuring the Court ‘that someone will appear in order to read in English a statement of the company and/or any submissions’.
Furthermore, the author advised that the individual would be 6/7 hours behind London and requested the trial to take place on that time-zone. When further details were requested by the Judge the response was ‘the officers of the defendant are based in red/amber Covid listed countries. They are not allowed to enter England’ This being at the time a mis-statement of the position. The Judge declined to grant permission without Lehram complying with the order, to correctly authorise someone to represent it and to identify who that person is and from where they intended to appear.
Lehram failed to do that, which the court had ordered and, at the final hearing itself, the Crown Court refused to hear, via Videolink, those purporting to represent the defendant company. The court refused to adjourn the appeal; it had been set down for a four-day hearing. The court went to hold the defendant company was not in attendance at its appeal and, after legal discussion, dismissed the appeal.
Judicial Review
Lehram thereafter lodged a claim for Judicial Review of the decisions of the Crown Court on the basis that:
- in refusing to admit Lehram to the hearing was unlawful and contrary to natural justice
- the Court therefore denied Lehram a fair hearing
- The Crown Court Judge acted with bias or the appearance of bias
- There was no merit in the Interested Party’s submission that the outcome would not have been substantially different had the conduct not occurred.
Throughout the protracted Judicial Review proceedings, Lehram at times were represented and at others not. Voluminous and, on occasions entirely inappropriate, applications were filed – again by individuals without the requisite authorisation to represent the company, primarily by Ms Sokolova. These required investigation and detailed witness statements from EMM and a number of interlocutory Orders and case management hearings.
By this point, the Administrative Court had effectively been placed in the same position as the Crown Court at the time of the appeal hearing: an individual refusing to comply with the court’s clear orders, including orders as to identification, yet demanding to represent the claimant company via videolink from an unknown location and absent properly documented authority from the company.
These hearings culminated in a CMC when Mr. Justice Julian Knowles, finding that ‘Ms Sokolova appears unable or unwilling to comply with court orders and directions, and has proved herself unable only to file relevant material’, went on to hold and direct “I do not regard Ms Sokolova as being an appropriate or competent person to appear for the Claimant company and I refuse her permission in my discretion to allow her to appear for it.”
and
“Pursuant to CPR r 39.6(b), therefore, I refuse Ms Sokolova permission to appear on behalf of the Claimant at the hearing. She may not take any further part in these proceedings.” [See Lehram Capital Investments Ltd, R (On the Application Of) v Southwark Crown Court [2022] EWHC 3203 (Admin)]
At the full hearing at which Lehram were now represented by counsel, Julian Knowles J went on to dismiss the Judicial Review on the following basis:
- It was not unreasonable for the Judge to refuse the application to adjourn the trial;
- The Court was correct to hold that Lehram was not properly before the Crown Court because no proper written authorisation had been given to Ms Sokolova or anyone else to represent the Claimant on the appeal;
- There was a proper basis for the Court to exercise its discretion to decline to hear from Ms Sokolova by way of video link; and
- As the Claimant had not appeared on its appeal, it was open to the Crown Court to dismiss it.
Legal principles
Whilst the facts of this matter were somewhat involved, the primary legal principle to arise from the judgment was a reinforcement of the strict requirements in respect of both videolinks and of those representing a company, particularly if the company is a litigant in person.
Andrew Marshall and Fani Gamon instructed Jonathan Ashley-Norman KC
[1] Contrary to ss.1 and 2 Fraud Act 2006
[2] Contrary to s.1112 Companies Act 2006
Fani Gamon
