Itkin v Jones (Royal Court : Hearing (Civil) : Bailhache, W : Legal representation) [2026] JRC 011 (8 January 2026)

judgment the COMMISSIONER: 1. Proceedings in the Royal Court and elsewhere between Golden Sphinx Limited, ("GSL"), now in liquidation and the Applicant are ongoing. There is a history of earlier proceedings between the Applicant and GSL and others associated with that company. On 2 October 2025, reported at Golden Sphinx Limited v Itkin [2025] JRC 244 , the Master made a number of procedural orders in respect of the litigation commenced by GSL against the Applicant in Jersey in 2022 (the "2022 proceedings"), and subsequent variations took place by a judgment of the Master on 1 December 2025 to be found at Golden Sphinx Limited v Itkin [2025] JRC 320 . Amongst those orders are that the Applicant should by 9 January 2026 provide on affidavit details of the extent of the hard copy documents in his custody, power and / or possession which are or might be subject to Practice Direction RC17/07, together with the information required pursuant to Practice Direction RC17/08, and the parties should exchange draft discovery protocols in relation to documents held in electronic form. It was also ordered that unless the Applicant complied with these orders, his Answer should be struck out. The Master ordered that any issues arising in relation to the affidavits and protocols should be determined at a hearing scheduled for 11 February 2026.

2. Advocate Jones represented the Applicant until he was advised by the Applicant on or about 21 August 2025 that Advocate Sharp would be instructed in his place. Whether that has or has not happened, the Applicant represented himself before the Master on the occasions giving rise to the two judgments which I have mentioned, and he also represented himself before me.

3. The application before me is for orders that (i) As he has so far refused to do so pending payment in full of his outstanding fees, Advocate Jones be directed to withdraw from acting for the Applicant and come off the record as advocate for him in the 2022 proceedings between GSL and the Applicant; (ii) Advocate Jones be ordered to deliver up forthwith to the Applicant or to such new advocate as he might appoint, the complete client file, papers and correspondence pertaining to the 2022 proceedings; (iii) any dispute concerning fees allegedly owed to Advocate Jones be dealt with separately by taxation or other appropriate process, without delaying or obstructing the Applicant's ability to secure new representation; (iv) the Applicant be granted leave to instruct Advocate Sharp or such other advocate as he may appoint to continue his representation and for such further or other relief as might be just.

4. The Applicant made a further application on 12 December, separate from the application against Advocate Jones, seeking clarification of the appeal status and practical timetable for his appellate rights in relation to the Master's judgment of 13 December 2024 dismissing his application to strike out part of the Amended Order of Justice issued by GSL in the 2022 proceedings. As I informed Mr Itkin at the hearing on 15 December 2025, at which Mr Itkin appeared as a litigant in person remotely from California, he had not served GSL with the application he was making and I could not as a result hear it. However, Advocate Boothman did confirm that the Notice of Appeal had been entered on a timely basis and a copy of it would be provided forthwith to the Applicant.

5. As to the application against Mr Jones, no direction that he withdraw from acting for the Applicant in the 2022 proceedings is necessary because the Applicant has cancelled his retainer. He therefore no longer acts for him in those proceedings. Furthermore, although it seems to me likely that the Applicant does not in terms need leave from the Court to instruct Advocate Sharp or any other advocate to appear for him in the proceedings, then to the extent it is necessary, for the reasons given below in connection with the Law Society Code of Conduct, I give it. As to the dispute over fees, I note that there are no proceedings between Advocate Jones and the Applicant in which the former claims judgment for fees owed to him, nor is there any formal claim for damages or other redress from the Applicant in respect of any alleged breaches of duty in respect of Advocate Jones' representation of him. There is, however, a Jersey Law Society process which can be invoked to resolve the dispute.

6. The narrow issues with which I am now concerned are these: (i) Is it appropriate to direct Advocate Jones to come off the record as advocate for the Applicant in the proceedings? (ii) How should the Court deal with the request for a direction that the Applicant may instruct Advocate Sharp or such other advocate as he chooses to represent him in the 2022 proceedings? (iii) Is it appropriate to order Advocate Jones to deliver up forthwith to the Applicant or to such new advocate as he might appoint, the complete client file, papers and correspondence pertaining to these proceedings?

7. In relation to these issues the question of outstanding fees, if any, is a potentially relevant factor.

8. Advocate Jones has sworn an affidavit to the effect that the rendered fees which are outstanding are for the period 5 th August 2025 to 5 th March 2025; a period of 7 months. The total amount owing is £x. He agrees that he had indicated to the Applicant he was not prepared to come off the record until his outstanding fees had been cleared. He avers that it was at that stage that the Applicant contended for the first time that the fees were not due and owing as a result of alleged professional negligence on Advocate Jones' part. In the latter's view, there was no real dispute until then that the fees were due and owing. He asserts that in relation to each of the fee notes that have been raised, both paid and unpaid, the Applicant has approved the amount claimed. To the total outstanding as bills rendered, needs to be added interest for late payment, together with any fees due for the period from 5 March 2025 until the date when the retainer ceased. As a result, Advocate Jones asserts that he would agree to accept £y as settlement of the total outstanding.

9. The Applicant advised me that in his litigation with GSL, he has been funded by a third party bank provider organised through his US lawyers. The basis of that funding was an assurance from Advocate Jones that the judgment which he had obtained against GSL on 2 December 2016 in the sum of £505,000 was unassailable, an application having been made unsuccessfully to set aside the judgment in 2021. The bank funding the Applicant had apparently considered that this judgment was in effect their collateral, but the Master's decision in December 2024 put the claim back in play, as it were, removing the collateral and thus the funding of the Jersey litigation dried up. The Applicant says that it was at that stage that his relationship with Advocate Jones deteriorated as the latter continually pressed him to settle the outstanding fees, rather than give attention to the litigation. He asserted that not only has he paid Advocate Jones a considerable sum but as a result of a series of interlocutory applications in which he had been unsuccessful, adverse costs orders against him in the sum of approximately £78,000 had been made. 10. [redacted] 11. The Applicant was unclear what the status of his rights of appeal against the Master's decision in 2024 were. He accepted that if he could still take that appeal forward, the negligence claim against Advocate Jones in part fell away. He also advised me that he could pay the sum of £10,000 into Court on account of the advocate's fees, if required to do so but he did not consider that such an order should be made. He would be willing to agree to any independent process for settling on the amount if any which was properly due by way of outstanding fees.

12. GSL are not before me, and I can make no substantive comment on the Master's judgment of December 2024, nor would it be appropriate for me to do so. What I will say, however, is that if it is right, as Advocate Boothman submitted on behalf of Mr Jones, that a Notice of Appeal has been properly served, then for my part I cannot see why the appeal should not have been brought on long before now. If it is in fact still possible to do so, it should be brought on forthwith. The need for urgency in that respect is a material factor in my decision on this application. Discussion 13. So I turn to the three issues.

14. Rule 6/6 (1) of the Royal Court Rules provides that a defendant who places an action on the pending list must provide an address for service. By Rule 6/6 (2), "However, if the defendant fails to give an address for service in Jersey, but has at any time been legally represented in relation to the proceedings, the address for service shall be deemed to be the address of the defendant's last advocate or solicitor. " 15. It follows that when the Applicant, through Advocate Jones, caused the 2022 proceedings issued by GSL against him to be placed on the pending list, the premises of his advocate became the address for service. That remains the position, until Advocate Jones formally comes off the record as representing the Applicant. There is further relevant provision at Rule 6/6 (5) which would apply if documents served at that address are thought not to have been delivered to the party in question.

16. I am advised by Advocate Boothman that although there remains the impasse over fees, all documents served on the Applicant at Advocate Jones' business address have been forwarded to him.

17. That seems on the face of it to be the correct and professional approach to this issue. Nonetheless, it is not ideal - both in terms of placing an additional obligation on Advocate Jones notwithstanding the conclusion of his retainer, and in the inevitable delay in passing documents to the Applicant who would either take action himself or need to instruct his new lawyer.

18. I have been referred to two local authorities in connection with these issues. The first is Cunningham v Sinels [2011] JLR 54 and the second is Crociani and others v Crociani and others [2016] JRC 089C . I do not regard them as being inconsistent with each other. In both cases, the Court recognised that the overriding consideration was the delivery of justice in the main proceedings before the court, and that balancing of the rights of the advocate against those of his erstwhile client engaged in that continuing litigation would involve a careful assessment of the facts of the case as they appeared to be. The former case involved consideration of whether to order the delivery to the client of the files held by his former advocate, and the later case went further in the Court's consideration of whether the Court could legitimately be concerned with whether a new firm of advocates could act for one of the parties to the litigation. At [17] of his judgment, Clyde Smith, Commissioner, said that " in the view of this Court, a failure to pay outstanding fees was, on the face of it, a valid reason for objecting to a new firm from accepting instructions in relation to a continuing matter, irrespective of the exercise of any lien over files held." 19. Importantly, on the facts in Crociani , there was no dispute that the former client could afford to pay the sums claimed by Messrs

Carey Olsen to be due. She simply did not agree for a number of reasons that they were due. The Court's conclusion that she should pay the sums claimed into the jurisdiction with a proportion to be paid to the former lawyers forthwith pending resolution of how much was due, balancing the rights of the client in the main litigation with the rights of the advocate who had been instructed, was a pragmatic solution to the issues before it. However, in case it should be thought that the passage cited above justifies a conclusion that no new lawyer could be appointed even where the former client could not afford to pay the outstanding fees, I should add this. In my judgment, the need to achieve justice in the proceedings before the court is the overriding consideration. The Court must ensure that a litigant has access to justice and a fair hearing under the Human Rights (Jersey) Law , and should not permit, as it were, the tail to wag the dog by putting the rights of the lawyer in that litigation to trump the rights of the litigant. I will not set the extracts out again in full, but I still consider what I set out at paragraphs [13] and [27] to [31] in Cunningham reflects the correct approach which the Court should take to these issues.

20. On the facts as put before me, I have reached the following conclusions.

21. Having regard to the material put before me, I do not consider that the Applicant acted unreasonably in discontinuing Advocate Jones' retainer. That does not reflect any criticism of the advocate's performance. It only means that where firm advice has been given, as here, and relied upon, it is unsurprising that the client should lose confidence, especially where it appears that that advice was the basis on which third party funding had been obtained.

22. It is unclear whether Advocate Jones was aware that the maintenance of an entitlement to the 2016 judgment was essential to the continued third party funding of the litigation for the Applicant. However, whether he was aware of the third party funder or not, he must have appreciated that the ability to claim, even by way of set off, the sum of £505,000 due under the default judgment was likely to be material to the handling of the 2022 litigation. It was thus essential that the appeal against the Master's decision in December 2024, if one were to be brought, was brought forward urgently. It may be - and I make no finding in this respect because if necessary it is for another occasion - that the continued non payment of fees has inhibited action in that respect. If that were the case, that emphasises the need to remove that impediment from the appeal being brought forward.

23. There is no evidence put before me to counter the Applicant's assertion that he is not wilfully refusing to pay the outstanding fees despite having the means to do so.

24. I make no decision on the quantum of fees, if any, properly due to Advocate Jones by the Applicant. There is a process which is available through the Jersey Law Society for this to be resolved. There is an alternative process through the Court if that should be appropriate. It would certainly seem from the material I have seen that there has been no criticism of the level of fees until the retainer was discontinued, but that does not tackle the issue of set off in respect of any alleged negligence, if indeed that is maintained, on which I obviously make no comment.

25. The Court is entitled to have the benefit of a party being represented by counsel - if the party wishes that -because it is in the interests of justice to have parties represented before the court in adversarial litigation where that is possible. That I should say this reflects no criticism of the Applicant in the hearing before me on December 15. He presented his case carefully and courteously. But where there are complex legal issues which arise, as with the 2022 proceedings, it is very much in the interests of justice that the parties be represented.

26. I am not unaware that I must also consider whether the decision which I reach would be unfair to Advocate Jones. In some ways, I accept his is a difficult situation. He has acted in good faith for a client for some time. That client is a person outside the jurisdiction against whom he will find it inconvenient, perhaps difficult, to obtain redress for the outstanding fees. On the other hand, there might have been ways of protecting his position earlier, whether by obtaining larger sums on account or perhaps investigating the extent to which a security interest was possible over the Applicant's assets. But the inescapable conclusion for me is that the advocate/client retainer is subordinate to the interests of the client in the litigation in respect of which the retainer arises. That is because the advocate's primary duty is to the Court, as the Law Society Code of Conduct emphasises. If the client has acted unreasonably or is wilfully taking advantage of a contrived position, the Court's discretion may be exercised differently. In the absence of that, then in my judgment the advocate/client dispute takes second place to the need to achieve justice in the main proceedings.

27. Given the terms of the Law Society Code of Conduct, it is unsurprising that no advocate would find it easy to accept instructions from the Applicant in circumstances where fees were apparently outstanding. For the reasons given at [28] - [29] of Cunningham , I consider that, subject to the condition which I refer to below, there would be nothing improper in a new advocate accepting instructions in this case.

28. The condition is that the Applicant should pay £10,000 into an account in Jersey pending settlement of whatever sum is found to be due to Advocate Jones, if any. The Applicant confirmed he was able to pay that amount. That order does not prejudge the amount which might be due. If there should be any difficulty in agreeing an appropriate stakeholder for the monies to be paid, they can be paid into the hands of the Judicial Greffier pending resolution.

29. Subject to this payment, I order that Advocate Jones should come off the record as soon as another advocate has been appointed by the Applicant and until then his address should remain the address for service as provided by the Royal Court Rules. I have no doubt that in the interim he will continue to forward to the Applicant expeditiously any court papers received to the extent that they are not available through Case Centre. In addition he should provide the Applicant with the Applicant's papers and files as described in paragraphs [30] to [31] of Cunningham . As in that case, there is liberty to apply.

30. Although I sat in private for this argument, this judgment, suitably redacted, will be published. A redacted version will be circulated to the parties for comment before publication takes place. Authorities Golden Sphinx Limited v Itkin [2025] JRC 244 . Golden Sphinx Limited v Itkin [2025] JRC 320 . Cunningham v Sinels [2011] JLR 54 . Crociani and others v Crociani and others [2016] JRC 089C . Human Rights (Jersey) Law 2000 Page Last Updated: 21 Jan 2026 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII