Two businessmen have been successful in an “unusual” Application made in the Crown Court, following a criminal trial which ended in May 2023. The businessmen had been locked in litigation with BES Utilities and its owner Andrew Pilley, who is now serving a 13-year prison sentence for fraud and money laundering.
Mr S and Mr M made the application for material used in the criminal trial from the Crown Court under the Criminal Procedure Rules (5.7, 5.8 and 5.9) after they alleged that Pilley and his associates concealed evidence from the High Court proceedings; which ordinarily ought to be disclosed under the Civil Procedure Rules part 31.6. The Crown Court had to consider the new Criminal Practice Directions 2023, which came into force just a week before the original application was made.
The Crown Court heard the basis of the Application was that in the course of High Court proceedings Pilley and his associates drafted witness statements they knew to be untrue, signed disclosure statements they knew to be untrue, fabricated evidence for the purposes of a trial (in the High Court), gave false oral evidence in the witness box – and continued to conceal material BES’s legal representatives knew could have disposed of the proceedings several years after, amounting to an interference in the proper administration of justice.
In documents lodged before the Crown Court and High Court, it is alleged that Pilley’s in-house solicitor Patrick Newell gave “over 100 paragraphs” of false evidence, failed to disclose emails from BES’s employees notifying him of fraud (thus falsely signing an N265 Disclosure Statement), and went on to perjure himself in the witness box when cross-examined by Hugh Tomlinson KC.
Separately, it was alleged two solicitors at Weightmans LLP, Damian Carter and Jessica Kraja, were complicit in the coverup of the “fraudulent proceedings”, and breached a Court Order by His Honour Judge Bird (sitting as a Judge of the High Court) by failing to properly conduct disclosure on behalf of BES as required under CPR31.6, by allowing the material in their possession to be suppressed and/or concealed, and knew for a prolonged period their Clients had given false evidence; this course of conduct is said to have caused a severe delay in the fair disposal of the claim.
In February 2019 Damian Carter of Weightmans was given a written warning by the Solicitors Regulatory Authority over his conduct representing BES Utilities and Andrew Pilley, however continued to remain on record until June 2023.
His Honour Judge Dean KC, the Honary Recorder of Manchester on 26 April 2024, noted that:
“The potential complexity of the issues which arise might be illustrated by the fact that the application and the response to it by, in effect, the Crown, runs to a bundle of 240+ pages.
That said, really the application boils down to this: the applicants consider that there was material generated in the prosecution of Mr Pilley and others which is highly relevant to civil litigation [Mr S] and [Mr M] were involved in and of potential relevance to potential future litigation and possibly contempt of court proceedings”.
Giving ruling on the matter, HHJ Dean KC ruled that:
“Although it seems to me that the primary reason material generated by proceedings in the Crown Court is to be made available to the public is to ensure that there is “open” justice (that is that there is transparency of decision making), CPR 5.10 (9) is widely drawn and the public interest in preventing injustice is a specific consideration. It seems to me that the applicants, whilst they have personal reasons for wishing to access material, are in a real sense seeking to expose injustice actually both towards themselves, but also what might be described as the public injustice represented by potential contempt of court. In my view Part 5 of the CPR is properly engaged in this application and it is appropriate that the material set out in the schedule to the Order ….. be provided to the applicants.”
Neil commenting on the matter said:
“We had been locked in battle with BES and Weightmans for several years to obtain disclosure which ought to have been given in accordance with the rules under CPR31.6 and under an Order of HHJ Bird dating back to March 2017, which could have fairly disposed of the High Court proceedings many years ago. We have no doubt that the refusal to provide delivery of these documents was because Weightmans knew it would have annihilated the civil proceedings and exposed the mendacious way the proceedings were conducted by BES, Mr Pilley, Mr Newell, and seemingly such conduct was condoned by their legal representatives”.
In another “unusual” factor about the Application, the matter was transferred from Preston Crown Court (where the criminal trial was held), to Manchester Crown Court. This after is His Honour Judge Knowles KC recused himself after he considered he may be deemed to be impartial on the Application, due to the complaints about Patrick Newell. HHJ Knowles KC had a professional working relationship with His Honour Judge Simon Newell (Patrick Newell’s brother), who retired in 2021, shortly after being criticised and reprimanded by Judicial Conduct Investigations Office.
Olly commented:
“We have served Damian Carter and Jessica Kraja of Weightmans notice of Contempt Proceedings, and they will be dealt with appropriately in due course. Whether they attempt to defend it is of course a matter for them, but the evidence is pretty damming”.
Information about criminal proceedings about Andrew Pilley and Co can be found here:
Information about His Honour Judge Simon Newell can be found here: