Law Society (acting through the Solicitors Regulation Authority) v Waddingham, Smith and Parsonage
[2012] EWHC 1519 (Admin)
The Solicitors Regulation Authority brought proceedings against three partners in a firm in Preston. There were five allegations. In relation to allegations one, two and three, no dishonesty was alleged. In relation to the fourth and fifth allegations, dishonesty was alleged.
The matter came before the Solicitors Disciplinary Tribunal and the SRA made a successful application to add an additional allegation. It became apparent during the hearing that there was confusion as to whether dishonesty was alleged in relation to the additional allegation.
The tribunal considered the matter on the basis that, except for the question of dishonesty, all the allegations were admitted. The tribunal proceeded to make a finding that dishonesty was not made out in relation to any of the allegations. The confusion surrounding the question of dishonesty in relation to the additional allegation led to that allegation being withdrawn.
It was at this point in the proceedings before the tribunal that, on appeal, Maddison J commented that the ‘hearing began in my view to go astray’.
After hearing submissions in mitigation, the tribunal imposed fines on the three respondents and ordered them to pay costs.
The tribunal gave its written findings, and stated that although the first limb of the test for dishonesty in Twinsectra v Yardley had been made out, the second limb had not.
The SRA appealed against the decision firstly on the basis that the tribunal had been mistaken in finding that dishonesty was not established, and secondly that the fines imposed were wholly inappropriate in that the level of the fines did not reflect the seriousness of the allegations which had been admitted.
The appeal was initially in relation to all three respondents. However, the appeal in relation to Mr Waddingham was withdrawn after he agreed for his name to be removed from the roll and undertook never to seek re-admission. The appeal, therefore, proceeded only in relation to Mr Smith and Mr Parsonage.
On appeal, the questions for the court were: (1) should the matter be remitted to the tribunal; (2) had Mr Smith and Mr Parsonage acted dishonestly; (3) what was the appropriate penalty.
The SRA submitted that even if dishonesty was not made out, the misconduct admitted was serious enough to damage the reputation of the profession to the extent that the fines imposed were inappropriate and that, at the minimum, a significant period of suspension would be appropriate.
The court confirmed that whilst it should accord considerable weight to the findings of the tribunal, it was also entitled to substitute its own view in appropriate cases, including in relation to the sanction imposed.
The court did not consider that it was appropriate to remit the matter to the tribunal. The court did not accept all the SRA's criticisms of the tribunal, but held that its findings ‘were characterised by confusion, inconsistency and sometimes inaccuracy’.
It was for this reason, along with the fact that the primary facts were admitted and that no further evidence was presented to the tribunal, that the court considered that it should re-determine the question of dishonesty.
Maddison J considered the subjective and objective limbs of the Twinsectra test. He concluded that although Mr Smith and Mr Parsonage had probably acted dishonestly, he was not able to be sure that they had done so. On the criminal standard of proof, therefore, it was found that dishonesty was not made out.
However, in the light of the serious breaches of trust admitted, the court quashed the fines imposed by the tribunal and imposed suspension orders of 18 months for Mr Smith and 12 months for Mr Parsonage.
