Abuse of due process: Which Court is being Misled by Counsels submissions

HHJ Parfitt in his 8/11/21 judgment in Mohamed -v- Takhar at para 26 observes: -

It seems to me that looking at this from a position of substance and reality, the decision (2017 injunction) obtained from HHJ Bailey (now retired) in favour of the appellants (Mohammed) against two surveyors (Antino and Stevens) was obtained because the Mohameds' (Represented by Mr. Nick Isaac) legal strategy argued that they had contracted out of the Party Wall, etc Act 1996. but before me, [2021] (HHJ Parfitt) the Mohameds' (as appellants) (represented by Mr. Andrew Butler QC and Junior Counsel Mr. Stuart Frame) argued that the parties (the Mohameds' and Takhars') had Not contracted out of the Party Wall etc Act 1996 but rather had contracted into it.

HHJ Parfitt continues: -

These are inconsistent positions and plainly inconsistent positions from an objective perspective it looks like one or other of the court is being misled as to the true nature of the May 2016 settlement: did it contract out of the 1996 Act or Not?

In the 2017 application for an injunction by Mr. Nick Isaac's single argument was the 2016 Tomlin order between the Mohamed's and Takahrs'. It was on this argument that HHJ Bailey ignored Mr. Antino's (as he then was) argument that they had not contracted out of the Act and even if they had, they had no right to take away the statutory rights under s.10(12) or (13).

Clearly, HHJ Parfitt raises his concerns about one of the Couts being misled!!!!!

Clearly, this strategy was not contrived by the Mohamds'.

QUESTIONS NEED TO BE ASKED

Why was Mr. Isaac replaced by Mr. Butler QC?

Was it to avoid Mr. Isaac being severely criticized for arguing inconsistent positions?

Perhaps Mr. Isaac had asserted his conscience and stood down because he would not argue this inconsistent position?

In which case what was Mr. Frame's state of mind when he stepped into his senior colleague's shoes to argue this point?

Was this a contrived strategy from the very beginning ie pat the 2016 settlement?

If so was there a deliberate attempt to mislead either the 2017 (bailey) case or the 2021 (Parfitt) Case?

These are experienced Counsel 2 x QC and 1 x Junior Counsel, ignorance of the Law is not a defense, but does knowledge of the law entitle someone to abuse due process?

The two surveyors are considering their legal positions which includes bringing this to the attention of the bar standards. A full Blog is being prepared.